Failing to implement a written respiratory protection program;
Failing to provide a medical evaluation, respirator fit test, training on the proper use of a respirator and personal protective equipment;
Failing to report an injury, illness or fatality;
Failing to record an injury or illness on OSHA recordkeeping forms; and
Failing to comply with the General Duty Clause
That last one is the OSHA/COVID kick in the you-know-whats. OSHA’s General Duty Clause requires that each employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” It’s of vital importance during a pandemic because OSHA lacks any specific standards on infectious disease or viral prevention. For this reason, most employers’ COVID-related failures will be related to failures to meet their “general duty” to keep their employees safe.
Follow CDC rules on isolation for those with COVID-19 and quarantine for those within close contact with those with COVID-19
Inform and encourage employees to self-monitor for signs and symptoms of COVID-19 and report any that they have
Mandate face masks or other facial coverings
Establish rules that allow for six feet of physical distancing whenever practical, or install barriers when it is not
Promote frequent and thorough hand washing
Immediately isolate anyone symptomatic at work
Prohibit the use of shared equipment
Consider flexible work arrangements such as staggered shifts and schedules, and telecommuting
Maintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment
The Society for Human Resource Management describes itself as “the foremost expert, convener, and thought leader on issues impacting today’s evolving workplaces.” Physician, heal thyself!
According to a recent lawsuit filed against SHRM (as reported by The New Yorker), SHRM may have a huge whistleblower retaliation problem on its hands.
Here are the key allegations, which SHRM denies:
Bailey Yeager, a former director-level employee with a history of glowing performance reviews and promotions, expressed concern when the organization asked her in May for feedback about its proposal to return employees to the office after two months of working from home.
Expressing concern about potentially infecting her two daughters, she requested that she be allowed to continue working remotely “until returning to work is both more widespread regionally and there is a decline in the metrics regarding cases/hospitalizations.”
She also asked to see SHRM’s plans for reopening safely.
Two weeks later she, along with three other employees who had expressed similar concerns (including two with pre-existing medical conditions), were fired.
According to her OSHA complaint, SHRM CEO Johnny C. Taylor Jr. held a conference call during which he outlined plans to “outsource” job functions in departments in which employees had expressed resistance to returning to work in person.
Yeager’s complaint also alleges that Taylor bragged that he had spoken to his friend Eugene Scalia, the Secretary of Labor, and that an OSHA representative contacted Yeager to implore her to withdraw her complaint. (To be fair, it unclear if there is any nexus between Taylor’s call to Secretary Scalia and OSHA’s call to Yeager, but it is definitely implied in her complaint).
If you fire employees who reportedly dare ask for the ability to continue working from home, and potentially wield your influence with the federal government in an attempt to leverage the dismissal of the resulting lawsuit, while at the same time holding yourself out as the “foremost expert on issues impacting today’s evolving workplaces,” you might be the worst employer of 2020.
When an employee tests positive, an employer has certain reporting obligations. These obligations fall into two categories—reporting to OSHA and reporting to your state or local health agency under state law.
OSHA
While OSHA has remained largely silent on mandates for businesses related to COVID-19, it has published specific guidance on when an employer must record and report COVID cases at work.
Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers must record cases of COVID-19 in their OSHA logs, if:
The case is a confirmed case of COVID-19;
The case is work-related; and
The case involves death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed health-care professional.
You should assume numbers 1 and 3 are met when an employee reports a positive test. Criteria number 2—work-relatedness—will almost always be the tripping point for recording vs. non-recording.
According to OSHA, an employer must make a “reasonable determination” of work-relatedness in determining whether to record an employee’s positive test. In making this determination, OSHA relies on three factors:
The reasonableness of the employer’s investigation. OSHA does not expect employers to undertake extensive medical inquiries. Instead, OSHA usually considers it sufficient for an employer (1) to ask the employee how s/he believes s/he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential COVID-19 exposure.
The evidence available to the employer at the time it made its work-relatedness determination.
The evidence that a COVID-19 illness was contracted at work. OSHA states that the following information is relevant to this determination—
COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.
Per OSHA, “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”
OSHA’s reporting rules also apply to confirmed workplace cases of COVID-19. That is, for confirmed work-related cases of COVID-19—
an employer must report to OSHA in-patient hospitalizations within 24 hours of knowing both that an employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19; and
an employer must report employee fatalities the occur within 30 days of the workplace incident (in this case, the exposure to COVID-19) and within 8 hours of the actual fatality.
Violations of these recording or reporting requirements are subject to OSHA’s traditional enforcement and penalties.
State Law
States have their own COVID-19 reporting requirements. For example, Ohio mandates that businesses “contact their local health district about suspected cases or exposures” of COVID-19. This reporting is critical so that the local health department can undertake the contact tracing necessary to identify close contacts and limit pre-symptomatic and asymptomatic spread.
Employers should check with their legal counsel on their state-specific reporting requirements.
Monday night saw President Donald Trump dramatically return to the White House after his three-day stay at Walter Reed Medical Center for COVID-19.
We saw Marine One land on the White House lawn, President Trump emerge and walk up the stairs to the White House, remove his mask for a photo op, enter his home with his mask still in his pocket, reemerge for a reshoot, and again enter the White House maskless.
It’s that last part I want to talk about. HuffPost asks if White House employees could lodge an OSHA complaint about the President’s COVID recklessness? I’d answer that question with a solid and resolute “thumb’s up.” The bigger question, however, is whether OSHA would do anything about it.
OSHA, the federal agency responsible for employee health and safety, presumably also regulates the health and safety of White House employees. I know of no OSHA standard that exempts them.
That said, OSHA also does not have a specific standard addressing viral pandemics. Instead, it regulates this outbreak via its general duty clause: “Each employer shall furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
It’s that “general duty clause” that could cause the White House fits if its employees take their COVID complaints to OSHA.
Several [Secret Service agents] who spoke with The Associated Press expressed concern over the cavalier attitude the White House has taken when it comes to masks and distancing. Colleagues, they said, are angry, but feel there’s little they can do.…
[T]hree former employees … expressed concern about the health of current workers, but were too afraid to speak publicly. Many are Black or Latino, among the demographic groups that have been more vulnerable to the virus.
Disgruntled employees are the employees most like to file a complaint with a federal agency such as OSHA. And at this moment in history, it seems like there are a large number of disgruntled employees working inside the White House.
Of course, as the HuffPost aptly points out, “Given the retributive nature of the Trump administration, any worker who wants to call in OSHA should be concerned about retaliation. Workers can file complaints anonymously to protect themselves, but those are less likely to receive a thorough investigation than ones with a name attached.” Perhaps this will be this administration’s saving grace on this issue — the fear of anyone to do anything about it. That and the fact that OSHA is not all that likely to investigate or fine its boss.
Additionally, OSHA doesn’t have the best record investigating COVID-related issues. According to former OSHA head David Michaels, “This is far and away the most significant worker safety crisis in OSHA’s history, and OSHA has failed to step up to the plate. OSHA has failed to use really any of its powers to address it . … It’s hard to take OSHA seriously.”
What hasn’t OSHA done?
It hasn’t issued any temporary standards to address issues specific to the COVID pandemic.
It hasn’t done anything more than issue voluntary guidance with little to no legal risk or ramifications for noncompliance.
It hasn’t launched many investigations over COVID-related complaints—OSHA has only opened 184 investigations stemming from the 8,856 complaints it’s received related to COVID-19 (an inspection rate of less than 3 percent).
It hasn’t levied any significant fines or penalties, unless you consider the $13,494 fine levied against Smithfield Foods stemming from one the countries worst workplace coronavirus outbreaks.
Our nation has failed its COVID-19 test in many glaring ways. OSHA is just one example. The White House’s current messaging on the ongoing pandemic is emblematic of the safety issues that many employers are handling (and handling better than the White House) on a daily basis.
Don’t act like the White House. Require masks at all times. Promote good hand-washing hygiene.
Enforce a minimum of six feet of physical distancing. Mandate isolation for COVID+ employees and quarantine for those in close contact with anyone COVID+.
Your employees are trusting you to keep them safe. Do not fail this test.
Considering that a worker is injured on the job every seven seconds, prioritizing employee safety is of utmost importance for virtually all organizations.
While such a figure is staggering, the National Safety Council says that each one is preventable. Employers can teach and hopefully minimize the back strains and falls of everyday employee safety, but once the pandemic hit in early March, organizations faced an unforeseen challenge and were largely unprepared to address the issues COVID-19 presented to a healthy workplace.
While there was a bit of breathing room for companies that could send employees home to work, others including Marquette, Michigan-based Easy Ice, scrambled to find safety solutions with little time to spare. As a national ice machine provider, Easy Ice provides an essential service. Its employees are essential workers, which meant company leaders had to quickly create a safety plan for workers while still servicing its customers.
John Mahlmeister, co-founder and chief operating officer, Easy Ice
Easy Ice Safety Manager Ryan Mahru was assigned to design a reopening plan specific to Easy Ice while also keeping in mind the different conditions for its 200-plus employees in 14 locations across the United States.
“The first step was making sure all of our employees followed best safety practices,” said John Mahlmeister, co-founder and chief operating officer of Easy Ice. “We created a COVID response task force that meets weekly to discuss emerging technology and update our best practices. We also consulted the OSHA Occupational Risk Pyramid, which classifies workplace exposure risk into lower, medium, high, and very high.”
Safety for in-office and field employees
A comprehensive 17-page preparedness and response plan spelled out protocols for in-office employees and field technicians servicing commercial ice and water dispensers for other essential employers including manufacturing plants, hospitals and fast-food restaurants.
Technicians were provided with latex gloves and eye protection when servicing ice machines in the field. They also were limited to one individual per vehicle when traveling between jobs, Mahlmeister said.
“We also factored in industry-specific scenarios where our employees were most likely to have in-person contact and we were able to adjust some of our protocols,” he said. One example, he said, was allowing technicians to give verbal confirmation that a job was completed versus doing it in-person.
A safe return to the office
All Easy Ice offices, which house about 60 percent of the company’s workforce, are now open, Mahlmeister said. There are no-touch thermometers at each sanitization station so employees can check their temperature, and Hepa air filters were installed to help reduce the number of airborne particles floating throughout the office.
“Policies and mandates differ from state to state,” he said. “So we followed a gradual return in accordance with local guidelines and COVID testing numbers. In areas where we identified it would be safe to reopen offices, employees were given the option to continue to work from home for extenuating circumstances, such as caring for high-risk family members.”
To assure compliance, all branch managers perform a routine safety audit to identify areas for improvement and ensure compliance with federal guidelines, he said. Branch managers also attend weekly safety briefs where leadership shares new and emerging safety information to prevent coronavirus in the office. Managers also conduct training sessions with employees to ensure these safety measures are implemented into daily practices.
Addressing the emotions
Taking care of the physical side of employee safety was crucial. But Mahlmeister and his team realized they needed to address the emotional side of a pandemic that has deeply affected workers.
“Changing work conditions can be stressful for employees, so we created programs to ensure our team stayed healthy and happy throughout the pandemic,” he said. Easy Ice’s workforce is made up of 74 percent hourly while the remaining 26 percent are salaried employees. Some 40 percent of the workforce is dedicated to serving customers in the field, he said.
“Transparency was key,” he said. “We held all-employee meetings monthly during the height of COVID so employees knew that Easy Ice was standing strong through uncertain times.”
Like many organizations, Microsoft Teams became a staple of the work day to help employees physically and emotionally.
“Activities include yoga, healthy breathing and chair exercises, lessons to help parents with home schooling, urban gardening classes and photo and recipe-sharing events,” he said.
The comprehensive plan has helped Easy Ice employees endure the pandemic. But this is not short term, Mahlmeister said.
“Safety should be every company’s top priority,” he said. “I encourage all employers to create an effective response plan while consulting health organizations and recommendations made by professionals. When employees feel safe coming to work, it will allow for a boost in morale and ensure they are able to focus completely on the job.”
Managing and scheduling an hourly workforce can be a challenge in the best of times. With so many employees working virtually give them the convenience of the Employee Scheduling App so you can manage your business from anywhere.
“Carlos, there is no need to feel that you are going to lose your job. If at this time you do not feel comfortable returning to work, you can stay home without penalty and take the time unpaid.”
That email, sent from Tesla’s acting human resources director to a now terminated employee, will be central to that employee’s wrongful termination lawsuit pending against the automaker.
The employee claims that Tesla retaliated against him because he pressured the company to release information about its health and safety protocols following reports of employees testing positive for coronavirus after returning to work in late May.
The timing does not look great for Tesla. The “you can stay home without penalty” email came one day before the employee spoke out against Tesla at a news conference about conditions at the plant and his fear of returning to work … and one day prior to Tesla emailing the employee to tell him his job was at risk.
Within hours of that news conference, Tesla’s human resources department emailed a “Failure to Return to Work” notice, advising of termination without an immediate return to work. The employee (and a co-worker who received a similar notice and also openly questioned the company’s safety during the pandemic) opted to remain on unpaid leaves because of their health and safety concerns. They claim their terminations are in retaliation for their vocal questioning of their employer’s commitment to safely reopening and operating its manufacturing plant.
There is nothing inherently unlawful about ending an employee’s leave of absence and requiring their return to work (even during this pandemic). However, when an employer ends the leave within hours of an employee openly and vocally challenging health and safety issues, retaliation becomes a real concern.
Whistleblower retaliation is one of the biggest legal risks facing employers during this pandemic. OSHA, the National Labor Relations Act, and myriad state laws protect employees from retaliation for raising health and safety concerns at work. Instead of risking a lawsuit by removing a “difficult” employee from the workplace, employers should view them as an opportunity to improve. Why are they raising issues? How do they feel unsafe? What can we do to improve and make all employees feel safer? If we are doing everything we can to provide as safe of a workplace as possible, how do we communicate that fact to employees?
Far from an opportunity to terminate, employee health and safety complaints (always, but especially during this pandemic) present an opportunity to listen, improve, and strengthen your relationship with your employees. Employers that do not understand this opportunity are risking dangerous and costly retaliation lawsuits.
Smithfield Foods is a meat-processing company, which was affected by several federal and state orders related to COVID-19. On April 4, the state of Missouri identified livestock-slaughter facilities as “critical infrastructure.”
On April 22, the Occupational Safety and Health Administration sent a “rapid response investigation” letter to Smithfield regarding its COVID-19 work practices and infection at Smithfield’s Milan, Missouri, plant, and giving Smithfield seven days to respond. OSHA requested that Smithfield identify what policies and actions had been implemented in light of the COVID-19 pandemic.
The Rural Community Workers Alliance, which represents the workers at Smithfield’s Missouri plant, brought a lawsuit in the U.S. District Court for the Western District of Missouri accusing Smithfield of failing to adequately protect employees at the Missouri plant from contracting COVID-19. The RCWA raised state-law claims for public nuisance and breach of duty to provide a safe workplace.
The court dismissed the lawsuit. The court dismissed the case under the primary jurisdiction doctrine, which allows a district court to refer a matter to the appropriate administrative agency for ruling.
Citing in part the Trump administration’s April 28 Executive Order requiring meat processing plants to continue operating during the pandemic, the court concluded that “OSHA (in coordination with the USDA per the Executive Order) is better positioned to” determine whether Smithfield’s plant was complying with federal guidance.Rural Community Workers Alliance, et al. v. Smithfield Foods, Inc. et al., No. 5:20-CV-06063-DGK 2020 WL 2145350 (W.D. Mo. May 5, 2020)
IMPACT: While labor unions and advocacy groups will continue to raise concerns regarding worker safety in light of COVID-19, federal courts may be inclined to defer to OSHA on these matters. Ultimately, by reducing the risk of workers’ exposure to the virus, employers can also reduce their own exposure to liability.
As COVID-19 cases rapidly increase all around the world, businesses, public servants, government officials and health care workers continue to take the necessary precautions to try to stop the spread.
Not only are large events such as conferences, sporting events, religious services and music festivals being canceled to help combat the pandemic, but businesses are also beginning to look at their own technology as potential health risks to their employees as well.
Biometric time clocks have become increasingly popular among many organizations in recent years as they heighten security and add convenience but are now being looked at as an epicenter for germs in the workplace that could include the coronavirus. This is one of the many examples of how the pandemic is affecting life at work.
According to the Centers for Disease Control and Prevention, it is possible for a person to get COVID-19 — commonly known as the coronavirus — bytouching a surfacethat has the virus on it and then touching their own face. Most vulnerable workers have to clock in and out, including in hospitals and health facilities. Considering the large number of people who must place their fingers or entire hands on these time clocks day in and day out, it didn’t take long for employees to raise concern.
The New York Post reported that employees in New York City have protested the fingerprint biometric time clocks causing organizations such as the New York Police Department and the Metropolitan Transit Authority to reconsider their time and attendance systems. Since then, the NYPD decided to suspend fingerprint biometrics at its headquarters. The MTA also said that it will stop using fingerprint-scanning time clocks in an attempt to slow down the spread of the virus.
There are more than 150 countries and territories that have confirmed coronavirus cases, according to an NBC news report. The CDC has also reported that in the US alone, there are 7,038 total cases, including 97 deaths — and the numbers are still climbing globally. It is crucial to keep workplaces as clean as possible for those who are spending more waking hours at work than at home.
The workplace has many hiding spots for germs, such as keyboards, elevator buttons door handles and time clocks. Since the novel coronavirus is most commonly transmitted between people, touching infected surfaces can pass the virus, too. Keeping these smaller objects in mind, it is important to continuously clean every one of these surfaces throughout the day and eliminate as many risks as possible.
The Occupational Safety and Health Administration and the CDC have recommended to wipe down workstations periodically, encourage employees to wash their hands more often, sanitize when soap is not available and save the handshakes for another time.
COVID-19 has no doubt taken a toll on businesses as a result of employee illness and temporary closures. Many workplaces are switching to mobile time and attendance technology not only in an attempt to make this process more convenient but to also create a more sanitary workplace by reducing possible exposure to their employees.
For Workforce.com users, there are features on our platform available to keep communication lines open during this difficult time. Engage with your staff, schedule according to operational changes, manage leave, clock in and out remotely, and communicate changes through custom events, among other things. Organizations impacted by COVID-19 can also benefit from Workforce.com’s employee app.
Poor treatment from a boss can make employees feel that they’re not valued by a group. As a result, they can become more self-centered, leading them to occasionally forget to comply with safety rules or overlook opportunities to promote a safer work environment.
The headline made me think that if bullying contributes to an unsafe workplace, can it also violate OSHA? The answer is quite possibly yes.
While OSHA does not have a specific standard on workplace bullying, it does have a General Duty Clause. It requires that employers provide a workplace free from conditions that cause, or are likely to cause, death or serious physical harm to employees. It’s not a stretch to imagine bullying, or permitting the continued employment of a bully, to violate this duty.
Moreover, if bullying violates OSHA, then failing to have a policy against it, and properly training employees on that policy, also violates OSHA. It’s a potential triple whammy.
Arguing that OSHA covers bullying is not novel. At last year’s American Bar Association’s Labor and Employment Law Section annual conference, for example, one panel argued for OSHA coverage for sexual harassment. OSHA already covers workplace violence and the hazards that cause it, potentially including intimidation and verbal abuse. And, in 2011 OSHA adopted an anti-bullying policy for its own employees.
I’m not saying this is a clear-cut issue. In fact, I think it’s more likely than not that OSHA does not cover workplace bullying. But the fact that we’re having this conversation shows that this is an ongoing problem that employers need to address.
What can employers do? The Journal of Applied Psychology study offers three suggestions.
Implement training programs that can improve leaders’ skills in interacting with their employees, so as to provide feedback and discipline in ways that are neither offensive nor threatening.
Promote a more civil and engaged work environment that strengthens social bonds between employees and creates a buffer against the negative consequences of their boss’ bad behaviors
Implement transparent performance evaluation processes so employees have less uncertainty about their social status in the workplace.
Or, you can just adopt my four-word workplace civility policy. Either way, tolerating and condoning abuse in the workplace, or worse yet, perpetrating it, cannot and should not continue, OSHA violation or no OSHA violation.
It’s been two years since OSHA announced its hard-line interpretation of its then newly announced anti-retaliation rules — that using incentive programs to penalize workers for reporting work-related injuries or illnesses, and that conducting post-incident drug testing without a reasonable possibility that employee drug use could have contributed to the reported injury or illness, constitutes unlawful retaliation under OSHA.
Last week, OSHA published a memo that specifically clarifies that it “does not prohibit workplace safety incentive programs or post-incident drug testing.” [emphasis in original]
What does this mean?
Incentive Programs
One example of an incentive programs is one that rewards workers for reporting near-misses or safety hazards. According to OSHA, “Positive action taken under this type of program is always permissible.”
Another example rewards employees with a prize or bonus at the end of an injury-free month, or evaluates (and bonuses) managers based on their work unit’s lack of injuries. According to OSHA, these programs are also permissible, “as long as they are not implemented in a manner that discourages reporting.”
According to OSHA:
If an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer [for retaliation] as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.
What are “adequate precautions to ensure that employees feel free to report an injury or illness?”
An incentive program that rewards employees for identifying unsafe conditions in the workplace;
A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
Post-Accident Drug Testing
According to OSHA, “most instances of workplace drug testing are permissible.” Examples of permissible drug testing include:
Random drug testing.
Drug testing unrelated to the reporting of a work-related injury or illness.
Drug testing under a state workers’ compensation law.
Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
Employers no longer need a nexus between the possible or suspected drug use and the reported injury or illness.
