Notwithstanding the omnipresence of COVID-19, employers are looking to bring employees back to the office. Just as previous downturns and major catastrophes led to a flow of lawsuits, the current pandemic is no exception. In an attempt to limit such lawsuits, in May of this year, the Safe to Work Act was introduced by U.S. Senator John Cornyn. Should it be enacted, the Act would shield businesses, schools, nonprofits, government agencies and other organizations from COVID-19-related lawsuits through Oct. 1, 2024, as long as they make “reasonable” efforts to follow public health guidelines and do not commit acts of “gross negligence” or “intentional misconduct.” State civil immunity laws vary widely across the U.S. Currently, nearly a dozen states have already enacted legislation limiting COVID-19-related civil liability for a broad range of businesses. Either way, Israeli companies with U.S. operations may wish to keep up-to-date and be well-versed in the new business environment and expanded employers’ responsibilities as set by federal, state and local government workplace guidelines.
Here are some considerations to keep in mind:
• The U.S. Occupational Safety and Health Administration (OSHA) has advised that employers should focus their response efforts on developing and implementing effective COVID-19 safety policies for the workplace. An employer’s adherence to government guidance is a key factor that OSHA considers when assessing whether the employer has fulfilled its “duty of care,” or its “good faith” efforts to comply with the OSHA standards and guidance. OSHA’s website provides a list of non-exhaustive practical COVID-19 safety considerations for employers to consider. The U.S. Centers for Disease Control and Prevention (CDC) has also published on its website a non-exhaustive list of safety protocols for all employers in response to COVID-19.
• Pandemic Response Team: Employers may wish to form a “Pandemic Response Team” that will drive, direct and communicate the employer’s policy and practice efforts. Among other tasks, the team will establish a process for COVID-19 related policy review, revision and implementation, as well as review existing policies, practices and protocols.
• Personal Protective Equipment (PPE): OSHA and many states, including New York for example, require employers to provide PPE to the workforce at the employer’s expense. Employers are under an obligation from OSHA to train employees on proper PPE use. CDC recommends that any time an individual is in public (including the workplace if interacting with other individuals), the individual should wear cloth face coverings. As with other guidelines, different states have adopted different local rules as well and companies need to follow both local and federal PPE guidelines.
• Deep Cleaning: Employers will need to follow CDC published guidance, as well as local guidance, that specifies what surfaces need to be routinely cleaned with soap and water and which need to be routinely disinfected.
• Screening employees: Employers may wish to ask employees if they are experiencing symptoms of COVID-19. This may be done at the beginning of each shift or work day. Employers may require employees, before they enter the workplace, to complete a simple questionnaire that lists each of the symptoms. If the employer retains information or records about these COVID-related inquires, the records must be treated as confidential medical information. Whichever screening policy employer adopts, it has to be applied uniformly to all employees.
• Anti-Discrimination: Employers must continue to ensure that the decisions being made and the policies being adopted during the COVID-19 pandemic comply with existing anti-discrimination and wage and hour laws. Employers must be aware that making decisions about groups of people based on their membership in a certain class can constitute discrimination. For example, employees who have been identified as “high risk for severe complications from COVID-19” by CDC guidelines based on age, underlying medical conditions and other factors are considered protected groups.
• The Future Workplace: The COVID-19 pandemic has increased employer awareness of technological tools, and will likely accelerate their development into the workplace. Environmental controls and monitoring will play a key role in ensuring the safety of the future worksite. Other technologies will help further reduce high frequency touch points. At the same time, new technologies and greater monitoring may raise challenges over employees’ rights, privacy and potential liability. Employers must look to the future of the workplace while showing empathy and giving easy access to the information tools necessary to keep their employees informed.
Human beings have always craved security, stability and a sense of control. The pandemic is teaching us that there is still so much we don’t know. As the French philosopher Voltaire said, doubt is not a pleasant condition, but certainty is absurd. And so it seems is the work environment, as it evolves, therefore employers will need to keep informed and be flexible.