As essential businesses continue to operate, and other businesses reopen, owners and managers are wondering about their obligation to protect employees from a potential COVID-19 infection. Employees are also wondering about the risk of performing or returning to jobs that might expose them to the virus.
Congress has been divided on the question of potential liability for businesses that fail to protect their employees from a hazardous work environment. While some members of Congress are concerned that businesses face the risk of litigation if their employees are exposed to the COVID-19 virus, other members note that businesses can only be held liable — and perhaps should be held liable — if they fail to take reasonable precautions that prudent employers should be expected to take to protect their employees from a hazardous condition.
How Congress will resolve that conflict is not yet clear. Unless and until Congress or the Florida legislature says otherwise, careful business owners and managers will need to exercise their best judgment about protecting their employees during the pandemic.
There are nevertheless existing laws that govern workplace safety. Although those laws do not specifically address COVID-19, they establish rules that apply to the kind of hazardous work environment that a pandemic might create. Those laws address, among other safety issues, whether and when an employer should provide personal protective equipment (PPE) to employees.
General Rules to Keep Employees Safe
The Occupational Safety and Health Administration (OSHA) recommends that employers evaluate and manage infection risks in their workplaces. In businesses that allow employees to work from home, those risks will be low. Risks will be higher depending on whether employees come into contact with significant numbers of co-employees, customers, vendors, and other potentially infected individuals during the workday.
OSHA also encourages employers to take a few obvious steps to protect their employees:
- Encourage employees to stay home if they believe they might have a COVID-19 infection;
- Send workers home if they have a persistent cough or show other symptoms of COVID-19, such as a fever or shortness of breath;
- Reduce the number of employees working during shifts to avoid workplace congestion and to promote social distancing;
- Arrange the workplace so that employees are working at least six feet apart;
- Replace face-to-face meetings with virtual meetings;
- Provide hand sanitizer and encourage employees to use them;
- Encourage frequent hand washing;
- Regularly clean work areas with disinfectants;
- Discourage employees from using each other’s phones and office equipment;
- Discourage employees from shaking hands or socializing within six feet of each other;
- Assure that proper ventilation and high-efficiency air filters protect employees in the workplace.
OSHA recommends that all employers consider these changes to their work environment and workplace rules to reduce the risk of spreading COVID-19. Some businesses may also need to provide PPE to their employees.
OSHA Regulations Regarding PPE
The federal Occupational Safety and Health Act of 1970 is administered by OSHA. That law is intended to “assure safe and healthful working conditions” for employees.
The Act generally requires an employer to assure that a place of employment is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” The risk of a COVID-19 infection may be a “recognized hazard” in some business environments.
Prior to the pandemic, OSHA created regulations that require employers to provide PPE to employees whenever it is necessary to protect employees from environmental hazards. For example, employees who work with asbestos must be provided with respirators, coveralls, and protective eyewear. While no specific regulations cover COVID-19, the general requirement to provide a safe workplace makes it necessary for some employers to provide employees with PPE.
With a few exceptions not relevant here, the employer must provide PPE at the employer’s expense. The employer must also keep PPE in a sanitary and safe condition. When PPE may become contaminated, employers should keep an ample supply on hand so that employees can be provided with clean equipment.
When PPE is required, employers cannot make workers perform job duties that involve contact with potentially infected individuals unless the equipment is provided. Employers are generally prohibited from disciplining employees who refuse to perform those duties without PPE if they are entitled to the equipment. Employers may want to seek legal advice if they disagree with an employee about the need for PPE in a particular job.
OSHA Guidance Regarding PPE for COVID-19
Recognizing that COVID-19 can be an environmental hazard that jeopardizes safety in a workplace, OSHA recently provided a Guidance on Preparing Workplaces for COVID-19. A “guidance” is not itself a regulation, but is an agency’s authoritative suggestion as to how a regulation should be interpreted in a specific situation.
Examples of PPE that OSHA recommends to protect employees from COVID-19 include gloves, goggles, face shields, face masks, and respiratory protection. The specific equipment that should be provided depends on the risk to which employees are exposed.
Employees with a high and very high exposure risk should be given N95 or equivalent respirators, face shields, gloves, and protective outerwear. Employees are at high or very high risk when they have regular contact with individuals who are known or suspected to have a COVID-19 infection. Most healthcare workers and support staff, medical transport workers, lab technicians testing for COVID-19, and mortuary employees require the full protection of PPE.
Employees with a medium exposure risk should typically be provided with gloves and face masks. Whether other equipment is necessary will depend on the circumstances. For example, goggles or a face shield might be appropriate for a salon employee who has physical contact with customers. A medium exposure risk exists when employees are regularly working within six feet of co-workers, customers, or other members of the general public who are not known or suspected to have an infection. Most front-end employees in supermarkets, restaurants, spas, and retail stores will fall into the medium exposure risk category.
Employees with a low exposure risk may not need PPE. They should nevertheless be encouraged to practice social distancing, frequent hand washing, and other safety procedures. Employees have a low exposure risk when they do not usually come within six feet of members of the general public or other employees while performing their jobs.
Employers should recognize that the need to provide PPE may change as circumstances change. Providing PPE may be less necessary in areas where community transmission of COVID-19 has not been identified. Employers will need to reassess their practices when COVID-19 cases are reported locally or when employees have contact with customers or vendors who have traveled from places where COVID-19 is more prevalent.