March 30, 2020 | Business Plans
The COVID-19 pandemic has wreaked havoc on the economy and health of Maine, the country and the entire world. With the city of Portland instructing residents to stay home, and Governor Janet Mills ordering all non-essential business in Maine to close, both employers and employees have countless questions on how this crisis impacts their business and jobs.
Guidance from the Centers for Disease Control (CDC), the U.S. Department of Labor’s Occupational Health and Safety Administration (OSHA) and other sources reveal the wide scope of employment issues caused by the pandemic.
A good place to start to understand an employer’s basic legal obligations is found in the Occupational Health and Safety Act. Under this law, employers are obligated to “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.”
Hazard levels vary from one employer to the next, and could differ based on different types of jobs within a company. However, if most of your employees work in relatively close proximity to each other, it wouldn’t matter much that some deal more directly with the public and some stay in the back office, because there’s a risk that one employee will spread the virus to another. So your hazard assessment must include the danger that your employees pose to each other.
OSHA has placed jobs and workplaces into four COVID-19 exposure risk categories, ranging from “very high” to “lower.” Very high risk jobs include health care workers who come into regular contact with people who have, or are suspected of having, been infected.
Medium exposure risk are those “with high-frequency contact with the general population,” such as grocery store clerks. The lower risk category involves “employees who have minimal occupational contact with the general public and other coworkers, such as office employees.”
Appoint a COVID-19 Czar
To help you streamline and centralize information about the pandemic, appoint a COVID-19 response czar for your business. This person should be responsible for taking the necessary steps to assess and mitigate risks and handling communication with employees. It’s important for this person to proactively handle tactical steps to minimizing risks (e.g. communicating proper hand washing technique and frequency), ensuring the business has the resources to minimize risks (e.g. supplying soap and sanitizing cleaners) and addressing potential policy changes and guidelines (e.g. setting up standards for working remotely).
Use Facts, Shun Rumors
Your policy decisions should be based on reliable assessments by respected organizations — not on alarming, sensationalist news stories. You should also be sure to keep your employees informed on how decisions are made, why they’re made and how it will impact their jobs, pay, benefits and health.
HR Question Sampler
With the situation changing each day (and sometimes each hour), you will surely be facing questions from employees, customers, vendors and other colleagues. Here are a few sample Q&As to help you address the situation. However, you’ll likely want to consult with human resources or an employment attorney for more comprehensive guidance.
Q: What should I do if one of my employees has tested positive for COVID-19?
A: Not only should you keep that employee away from work, but any other employees who came in close contact with them should also be sent home to quarantine for at least two weeks. That’s the generally accepted time frame in which symptoms show, and it’s able to be determined if an individual has been infected.
Q: Would an infected employee, who is likely to have been infected at work, qualify to make a Workers Comp claim?
A: Probably not, since getting the infection was not caused by a hazard specific to the employee’s job, like being contaminated by a toxic chemical or being injured using a piece of equipment specific to that job’s task.
Q: Is an individual affected by COVID-19 eligible to receive unemployment compensation (UC)?
A: Maybe. The U.S. Department of Labor (DOL) issued guidance on this situation, stating that the unemployment insurance program requires individuals to be able and available for work and to actively seek work. If an individual is currently infected, that isn’t the case. However, states have a lot of leeway in implementing these requirements, as well as in determining the type of work that may be suitable given the individual’s circumstances. See the State of Maine Department of Labor website and this link for more information.
Q: One of my employees just returned from a trip to a place where many people have been infected by COVID-19. Can I require the employee to be tested?
A: You usually can’t intrude into an employee’s health issues. However, if you can show that the test you’re requesting is job-related and have reason to believe the employee could pose a direct threat to coworkers, you’re likely within your rights to make that request. To be sure, consult with an employment attorney.
For more information about COVID-19 in the workplace, OSHA has issued this publication: https://www.osha.gov/Publications/OSHA3990.pdf