Tag: workplace safety

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Tipped restaurant and other service workers at high risk for ‘maskual harassment’

construction, mask, mobile technology, COVID-19
Everyone has been hit hard during the COVID-19 pandemic. Service industry employees, however, have been hit particularly hard. Many are out of work. And those who are able to work are working fewer hours and earning less in wages and tips.
Moreover, according to this survey (h/t: NPR), a majority of service industry workers are being forced to choose between earning valuable tips and staying safe by wearing a mask.

Consider these statistics regarding tipped employees:

  • 78 percent report experiencing or witnessing hostile behavior from customers in response to staff enforcing COVID-19 safety protocols.
  • 83 percent report that their tips have declined during COVID-19, with two-thirds reporting a decline of more than half.
  • 58 percent report feeling reluctant to enforce COVID-19 protocols out of concern that customers would tip them less.
  • 67 percent report actually having received a lesser than usual tip after enforcing COVID-19 protocols.
  • 84 percent report being within six feet of at least one person who is not wearing a mask in every shift, and one-third report being within six feet of 30 or more maskless individuals on every shift.

The kicker: 37 percent of tipped workers reported that their employer had not conducted mandatory training on COVID safety protocols and 69 percent reported that their employer is not consistently following all COVID safety protocols.

This is unacceptable. Restaurant workers are on the front lines of this virus working inside one of this pandemic’s most dangerous spreading environments.

They shouldn’t have to be de facto safety sheriffs, enforcing mask mandates and other health rules. Yet, that is the position in which many of their employers have put them, which, according to the above survey, is often without training or the enforcement of COVID safety rules.

Employees should not be placed in the position of enforcing COVID safety rules with a customer, especially when they risk the loss of tips and revenue as a result. Employers, do your part. Train your workers and set up a system of enforcement that takes your front-line workers out of the enforcement equation.

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The 12th nominee for the “Worst Employer of 2020” is … the Bad Bettor

Do you remember that scene from The Deer Hunter where Christopher Walken plays Russian roulette in a betting parlor, while the patrons place bets on whether he’ll live or die with every pull of the revolver’s trigger? That’s what I thought of as I read the allegations in Fernandez v. Tyson Foods, and not in a good way.

According to the lawsuit, while COVID-19 was running rampant through Tyson’s Waterloo, Iowa, facility, the Plant Manager “organized a cash buy-in, winner-take-all betting pool for supervisors and managers to wager how many employees would test positive for COVID-19.”

That’s just the tip of the iceberg of allegations in this wrongful death lawsuit, originally filed by the family of the late Isidro Fernandez, one of at least five employees who died of the virus. Indeed, according to their local health department, more than 1,000 workers at the plant, representing over one-third of the total workforce, contracted the virus. The lawsuit claims that Tyson Food demonstrated a “willful and wanton disregard for workplace safety.”
The recently filed amended complaint, which includes allegations concerning the betting pool, adds even more meat to the bone of these unsafe working conditions.
  • Despite the rampant spread of the virus within the plant, Tyson Foods required its employees to work long hours in cramped conditions without personal protective equipment and without following other workplace-safety measures.
  • In mid-April, just before the betting pool was created, the county sheriff visited the plant and reported that the working conditions inside “shook [him] to the core.”
  • An upper-level manager directed employees and supervisors to ignore COVID-19 symptoms, not to get tested, and to continue working, and supervisors falsely denied the existence of any confirmed cases or positive tests among the workforce.
  • Tyson paid $500 attendance bonuses, which actually incentivized sick employees to continue working.
  • All the while, managers avoided the plant floor for fear of contracting the virus, and executives lobbied Iowa’s governor for COVID-related liability protections.
For it’s part, Tyson Foods vehemently denies these allegations and suspended all managers accused of taking part in the betting pool (seven months after the fact).
If you place bets on which of your employees will contract a deadly virus, while you continue to take active steps that expose them to a greater risk of contracting that virus, you might be the Worst Employer of 2020. And thank you to all of my readers who sent me this very worthy nominee.
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Breaking down the potential liabilities in Ohio’s new mask rules

essential workers; workers' compensation, mask

During yesterday evening’s statewide address, and amid dangerously rising COVID-19 infections and hospitalization, Governor Mike DeWine, announced the reissuing and restating of Ohio’s mask mandate. The order now contains four specific rules for businesses to follow regarding mandatory masking.

  1. Each business will be required to post a Face Covering Requirement sign (version 1 / version 2) at all public entrances of the store.
  2. Each business will be responsible for ensuring that customers and employees are wearing masks.
  3. A new Retail Compliance Unit, comprised of agents led by the Bureau of Workers’ compensation, will inspect to ensure compliance.
  4. First violations will receive a written warning, and a second will result in a 24-hour closure of the business.
construction, mask, mobile technology, COVID-19First and foremost, before the disabled and their advocates start screaming that this order violates the ADA, it doesn’t. Yes, Title III of the ADA requires that businesses that are open to the public make exceptions to mask rules for those with disabilities that prevent them from wearing a mask. That accommodation, however, need not be letting them inside the business unmasked. You can offer online ordering and curbside pickup. You can have shoppers at the ready to make purchases on-call and bring them outside to the customers, or otherwise meet the customer outside to transact business. As long as your service is made “readily accessible” for someone with a disability, you’ve met your obligation under the ADA, and there are many ways to accomplish this without letting someone inside maskless.
The same applies to employees. Title I of the ADA allows employers to modify work rules as a reasonable accommodation for an employee’s disability. If a mask causes an issue for someone with a disability, the solution is to offer that individual an accommodation. Maybe you segregate the employee so that he or she does not come into contact with anyone else. Maybe you permit that employee to work from home. Maybe you grant a leave of absence until the risk abates. The point is that the employer and the employee have options other than allowing them to work freely without a mask.
Secondly, the combination of numbers two, three, and four have me concerned if an employer is going to place compliance and enforcement responsibility on its employees.
For reasons that still befuddle and escape me, some people become hostile when told to wear a mask. Yet, your employees are not professionally trained in diffusing hostile situations. Don’t leave it up to your untrained employees to try to enforce these rules and potentially deal with escalating hostilities and violence. You wouldn’t send an amateur to defuse a bomb, lest you risk an explosion. This situation is no different. (It also might violate OSHA’s General Duty Clause.) Instead:
  1. Deploy trained personnel (ideally security, but at least someone at a management level) to enforce this mandatory mask rule and ensure 100 percent compliance within your business; and
  2. Train all other employees not to engage and instead to summon a designated responder.
This rule is long overdue. We all agree that masks are the number one thing we must do to slow the spread of COVID-19. Let’s mask up and all do our part.
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Coronavirus Update 11-6-2020: Accountability

The NFL has fined the Las Vegas Raiders $500,000 and stripped them of a 2021 draft pick for “brazen and repeated violations” of the league’s COVID-19 protocols. The violations include repeated incidents of players and coaches not wearing masks and permitting players to attend a charity event maskless while mingling with the crowd. The fines and penalty came after repeated warnings (and prior fines) by the NFL.

If your business’s COVID-19 rules are to have any meaning, you need to be prepared to stand behind them with discipline and even termination if necessary. These are important safety rules that are absolutely necessary to beat back this virus, especially as cases are spiking and we are hitting record numbers on a daily basis.

Your employees must be held accountable for their COVID-19-related misconduct. If they aren’t wearing masks (or are wearing them improperly), congregating in groups, not maintaining appropriate physical distance, attending large gatherings, engaging in prohibited travel, coming to work sick, failing to report a positive test, failing to report an exposure to someone else who tested positive, or violating any other COVID-19 health and safety rule you need to be prepared to respond with discipline or termination (depending on the severity or repeat-nature of the violation).

Otherwise, why have these rules at all?

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OSHA levies $2 million in COVID-related citations and penalties

construction, mask, mobile technology, COVID-19

Are you tired of the endless din of vote counts and election news? Let’s get back to the uplifting topic of the ongoing COVID-19 pandemic.

OSHA recently announced a spate of COVID-related citations totaling $2,025,431 in fines.

What issues is OSHA seeing across employers?

  • 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.
What does this mean in practice? These steps, recommended by OSHA in its Guidance on PreparingWorkplaces for COVID-19, is a good starting point for OSHA COVID-19 compliance:
  1. Require workers to stay home if they are sick
  2. Follow CDC rules on isolation for those with COVID-19 and quarantine for those within close contact with those with COVID-19
  3. Inform and encourage employees to self-monitor for signs and symptoms of COVID-19 and report any that they have
  4. Mandate face masks or other facial coverings
  5. Establish rules that allow for six feet of physical distancing whenever practical, or install barriers when it is not
  6. Promote frequent and thorough hand washing
  7. Immediately isolate anyone symptomatic at work
  8. Prohibit the use of shared equipment
  9. Consider flexible work arrangements such as staggered shifts and schedules, and telecommuting
  10. Maintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment
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Coronavirus Update: Please stop telling me that we all just need to get on with living our lives

COVID-19, coronavirus, public health crisis

Earlier this week, I posed what I thought was a simple question on the private Facebook page of my community’s homeowners’ association: given the current rise of COVID-19 cases, should we, as a community, rethink our trick-or-treating plans. It was intended to start a generative discussion about whether we can host public trick-or-treating safely, but it quickly devolved into insults and name-calling.

The general theme of my pro-Halloween opponents was some combination of—if you don’t feel safe stay home in your basement; and we need to live our lives. People felt comfortable expressing this opinion even after others had commented about family members COVID-19 had killed.

People need to stop correlating COVID-19 safety measures with a restriction on their ability to “live their lives.” We are in the midst of a pandemic stemming from a highly contagious airborne virus. The pandemic is not getting better. In fact, it’s getting worse as we are just at the beginning of the second wave of this deadly virus. More than 220,000 Americans have died, and countless more have suffered the loss of a loved one, or are continuing to suffer the lasting and lingering effects of a virus that we still don’t fully understand. The numbers are getting worse (health experts use the ominous word deterioration), and we are in for a long and difficult winter as we battle COVID-19’s second wave.
You living your life is stopping me from living mine.
My family has been very cautious with this virus. For the first two months of “living with Covid” we stayed in our home. We had groceries delivered. We only met with people from outside of our home on Zoom. We did not even order takeout. Seven months later my wife and I are both still working from home full-time.
As we entered summer, however, we started to slowly branch out. I started going to the grocery store in person. We ordered takeout from our favorite restaurants. (I scratched some off the list after seeing employees not wearing masks.) Every now and then we started grabbing a glass of wine outside at our favorite local wine bar, have enjoyed a few nights of live outdoor music at the wine bar, have entertained family and friends outside on our deck in small groups, and, in August sent our children back to school. For us, this is living our lives.
Others views of living their lives is quite different. They have large parties, visit restaurants and bars, and attend huge social gatherings. Moreover, as COVID fatigue sets in after seven months of limitation and restriction, people are getting lazier with maintaining distancing and wearing masks.
In short, a lot of people aren’t doing the things we all need to do to battle back this deadly virus. And because of it, I’m being forced back deeper into my comfort zone, my bubble.
Maybe I’m resentful. People out “living their lives” may not get sick at all, and I’m being hyper-cautious and I or my family still might.
Or maybe I don’t understand the appearance of selfishness and callousness—that you care more about your own life than that of your fellow human beings. That it’s more important to you to host that large party at your home or fill your kid’s sack with bits of candy, than to ensure that you don’t spread a deadly virus around our community.
The reality is that we can still beat back this virus. Science is in agreement with the simple steps we need to take.
  1. Wear masks.
  2. Maintain physical distance.
  3. Wash your hands.
  4. Stay home if you’re sick.

These measures are not complicated. But I also understand that simple does not equate to easy. It’s going to be a long fall and winter, especially in climates like Ohio’s, where we will be forced indoors for several months. But if we continue to ignore basic health and safety measures, COVID-19 will continue to thrive, more people will get sick and die, and people “living their lives” will continue to either jeopardize mine or force me into full-time hermit mode.

So today I am imploring everyone to think about others in addition to thinking about yourselves. When this virus I over (and one day it will be over), I will not have any regrets over how I lived my life. Will you be able to say the same?
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New CDC guidance will result in A LOT more employee absences

software, compliance

Yesterday, the CDC made a key update to its COVID-19 guidance. It made a significant change to the definition of “close contact.”

No longer does one qualify as a “close contact” by being within 6 feet of someone for 15 continuous minutes or more.
The CDC now defines “close contact” as:
Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period (individual exposures added together over a 24-hour period) starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”

Factors to consider in determining whether one is a “close contact” include:

  • Proximity (closer distance likely increases exposure risk);
  • The duration of exposure (longer exposure time likely increases exposure risk);
  • Whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding);
  • If the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting); and
  • Other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors).
Most notably, under separate CDC guidance, this determination is made regardless of whether anyone was wearing a mask or other facial covering.
This change matters a lot. COVID-19 quarantine rules depend on whether one has been in close contact with someone who tested positive. The liberalization of this definition (which appears to have been based on anecdotal evidence of at least one infection) will result in more people meeting the definition of “close contact” and therefore having to quarantine for 14 days after an exposure to someone who tested positive.
This doesn’t just matter to exposures in your workplace. It also matters to employees’ activities out side of work, and to their children who are exposed at school. If the child has to quarantine for 14 days, guess who might need to be home with their quarantining child?
Make no mistake, this will create an attendance mess for employers, especially as COVID-19 numbers continue to briskly rise. Now is the time to double-down on the enforcement of physical distancing rules and measures at work. Six feet must mean six feet at all times.
  • Floors should be marked so that employees understand what six feet looks like.
  • Shifts should be staggered to allow for greater separation of employees, if needed.
  • Start- and end-times should be shifted to avoid bunching at time clocks.
  • Lunch and break rooms should be set up to avoid crowding and allow for distancing.
  • Bathrooms and elevators should have strict (and low) occupancy limits.

You can’t control with whom an employee or a family member comes in close contact outside of work, but you certainly can enforce measures at work to limit the possibility of close contact occurring there. Otherwise, you risk one positive COVID-19 case wiping out your business for two straight weeks.

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The 10th nominee for the “Worst Employer of 2020” is … the Callous Car Dealer

COVID-19, coronavirus, public health crisis

I continue to shake my head at the callousness of employers during this pandemic. Consider this example from The Oregonian, which earns its spot as the 10th nominee for the Worst Employer of 2020.

A finance manager at a used car dealership in Portland was fired by his boss during a staff meeting for questioning the company’s alleged cover-up of a coronavirus cluster, a lawsuit claims.

McCrary contends his boss directed employees to conceal a COVID-19 outbreak to maintain business profits and customer visits to the showroom….

At least two workers tested positive and a general manager exhibited symptoms but refused to be tested, the lawsuit says. Two “significant others” of employees also tested positive, the suit says.…

His suit claims that Lapin didn’t require social distancing or take other safety measures at work in light of the coronavirus pandemic and had fired another sales representative who was worried in spring about coming into work.

Worst Employer of 2020 The lawsuit further alleges that the owner fired McCrary in an “alcohol and drug-induced rage” during an all-staff meeting after McCrary had raised health and safety concerns following the outbreak, screaming, “Everyone, everyone Shawn is fired – get the (expletive) out of my company!”
McCrary’s lawsuit also quotes this text message the owner sent after the staff became aware of the positive cases: “Keep this down please. Don’t share this information with anyone since we do not want to scare away business.”
A worthy nominee, indeed.
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SAFE TO WORK Act would offer employers a significant shield from employee COVID-19 lawsuits

COVID-19, coronavirus, public health crisis
Earlier this week, Senate Republican introduced their $1 trillion COVID-19 economic stimulus package. Among other proposals the bill contains the SAFE TO WORK Act [pdf], which would provide employers a significant shield from liability for lawsuits related to coronavirus exposure by requiring gross negligence or willful misconduct that actually causes a personal injury before liability could attach.
Employers would receive significant protections from employment-related COVID-19 lawsuits brought by employees.
If passed, the law would provide significant protections to employers under OSHA, the FLSA, the WARN Act, Title VII, the ADEA, the ADA, and GINA.
Generally, in any action, proceeding, or investigation resulting from or related to an actual, alleged, feared, or potential exposure to coronavirus, or a change in working conditions caused by a law, rule, declaration, or order related to coronavirus, an employer would not be subject to any enforcement proceeding or liability if the employer—
  • Was relying on and generally following applicable government standards and guidance
  • Knew of the obligation under the relevant provision; and
  • Attempted to satisfy any such obligation by: (i) exploring options to comply with such obligations and with the applicable government standards and guidance (such as through the use of virtual training or remote communication strategies); (ii) implementing interim alternative protections or procedures; or (iii) following guidance issued by the relevant agency with jurisdiction with respect to any exemptions from such obligation.
The law would also provide liability for any workplace coronavirus testing, except for personal injuries caused by the gross negligence or intentional misconduct of the employer or another person.
The law would prohibit a finding of joint employment status or of an employment relationship under any of the above noted statutes and the NLRA, ERISA, and the FMLA, if an employer provides or requires—
  • Coronavirus-related policies, procedures, or training
  • Personal protective equipment or training for the use of such equipment
  • Cleaning or disinfecting services or the means for such cleaning or disinfecting.
  • Workplace testing for coronavirus.
  • Temporary assistance due to coronavirus, including financial assistance or other health and safety benefits.
Finally, the law would amend the WARN Act to make clear that employers are not required to provide WARN notices for shutdowns or mass layoffs that are “a result of the COVID–19 national emergency.”
This law will put a premium on employers understanding, implementing, and enforcing required and recommended COVID-19 safety rules and protections. If you don’t already have these in place your workplace, (1) why not, (2) what are you waiting for, (3) you now have quite the incentive to do so, and (4) you really shouldn’t need this economic incentive to protect the health and safety of your employees.
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Should employers be testing employees for COVID-19?

COVID-19, coronavirus, public health crisis
Fortune magazine asks: “Why some companies are screening employees for COVID-19, while others have opted out?” This is a legitimate question.

Let’s start with the law. Does the law (in this case, the ADA) permit an employer to test employees for COVID-19? Yes, an employer absolutely may administer a COVID-19 test before permitting employees to enter the workplace.

From the EEOC:
[E]mployers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
Just because employers can test doesn’t mean they should test. Why shouldn’t an employer test even though the law allows for it?
1/ Because these tests only measure a small slice of time, and therefore are not a reliable indicator of whether an employee is bringing COVID-19 into the workplace. Unless you are going to test every employee every day (see no. 2 below for why this isn’t feasible or practical), a negative test only establishes that an employee does not actively have the COVID-19 virus within their system at the time the test was administered.
2/ Because tests aren’t necessarily reliable. A team from John Hopkins Medicine has concluded that COVID-19 tests have a false negative rate of at least 20% if used too early after infection. If one in five employees who tests negative for COVID-19 is carrying the virus, why test at all?
3/ Because tests are expensive and not available in a large enough quantity. Testing every employee every day will cost an employer a small fortune, while at the same time unnecessarily using testing resources that could be put to better use (i.e., for those who actually have COVID-19 symptoms). It’s for this same reason (among others) that I believe restarting professional sports right now is crazy. Those players are being tested every single day, using up valuable testing resources that are in too short supply as is.
What should an employer do instead of testing? All employers should require employees to self-monitor for COVID-19 symptoms, and upon the presentation of any such symptoms, report to the employer and isolate per CDC guidelines. Thereafter, the employer should contact its local department of health, contact trace, and quarantine those who were in close contact as needed. That’s about the best you can hope to do to help stop this virus from spreading in your workplace. The law allows you to require testing if you want, but why bother?