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July 24, 2020 | Covid-19 | Posted by Ascentis

Reopening America Part I: CDC Guidelines, OSHA Inaction, States Filling the Void

by Bob Greene, Senior HR Industry Analyst

[Editorial note: In a series of blog posts starting with this one, we offer observations and best practice guidance on the role that Human Capital Management can play in guiding your business to a safer reopening.]

On May 14, the Centers for Disease Control and Prevention (CDC), in conjunction with the White House, issued a series of six infographics, one specifically applicable to most employers, with guidelines for reopening their workplaces after the coronavirus-related closures in most states occurring in March and April.

It looked like this:

It is notable that virtually every recommendation on the page includes modifiers like “as feasible” or “if feasible.” While this infographic has been pulled from the CDC website and instead redirects to a series of replacement pages of narrative (last updated May 6), one area of consistency for all federal guidance has been its advisorial nature. There have been no mandates or requirements relative to workplace reopenings issued by HHS, DOL, CDC or OSHA.

Given the length of time and rise-and-fall nature of the infection rates for COVID, most people see this as intentional; the federal government intends to leave this rule-making to the states, counties and cities across the US. Many employers see this as a laudable intention, even where they are left to their own devices to make final determinations about what policies to implement to maintain a safe workplace. But many employers also feel somewhat lost; in an absence of rule promulgation and uncertainty about the science and the law (e.g., liability), some HR professionals are floundering. “Give us a set of rules and we’ll comply with them – as HR people, we know how to do that. But this….this is qualitatively different!”

The Compliance Background

We know that, prior to the Coronavirus pandemic, the primary federal agency responsible for employee health and safety governance was the Occupational Safety and Health Administration (“OSHA”), and it has jurisdiction over virtually every private sector employer in the US.

The two key doctrines within the Occupational Safety and Health Act of 1970, the driving force behind OSHA compliance, are the “general duty” and the “imminent danger” clauses. To some degree they stand at tension with each other, and both have been subject to direct (if not definitive) determinations on their applicability to the coronavirus pandemic, at least so far.

The general duty clause states, in part, that employers must provide each worker “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.” Given recent statements from the CDC, there are few employment law specialists who would seriously doubt that COVID-19 now qualifies as a “recognized hazard.”

The imminent danger clause allows employees to refuse to work if they believe they are in “imminent danger” because death or serious injury can result from working in the dangerous environment. So far, and to our knowledge, no court has ruled that an employee can refuse to report to work because of a general fear of contracting COVID-19, even if that employee is at heightened risk due to age or comorbidities.

In one of the rare Coronavirus-related tests of these doctrines, on April 28, the President signed Executive Order 13917, designating the food supply chain as an essential service and authorizing the use of the Defense Production Act to order processing plants to remain open and employees back to work. An immediate challenge to this Order was brought by plant workers near Milan, Mo., (Rural Communities Workers Alliance v Smithfield Foods) was dismissed on May 5, 2020, with the court indicating that OSHA had jurisdiction and must be given time to issue further guidelines.

Since that time, OSHA has issued no comprehensive regulations to address safe reopenings of workplaces (for the food processing or any other industry). Indeed, according to Virginia state regulators, more than 4,000 pandemic-related complaints to OSHA since the first of this year have yielded precisely ONE employer citation on the subject. This caused the state of Virginia to step up and take extraordinary action a few weeks ago.

Virginia Steps Up!

Citing the lack of OSHA direction, on July 15, Virginia became the first state in the US to issue mandatory (albeit temporary, effective for six months) COVID-19 workplace safety requirements. From Governor Northam’s announcement:

“Newly adopted standards require all employers to mandate social distancing measures and face coverings for employees in customer-facing positions and when social distancing is not possible, provide frequent access to hand washing or hand sanitizer, and regularly clean high-contact surfaces. In addition, new standards require all employees be notified within 24 hours if a coworker tests positive for the virus. Employees who are known or suspected to be positive for COVID-19 cannot return to work for 10 days or until they receive two consecutive negative tests.”

Still to be determined will be the interaction, if any, between these new state mandates, and EO 13917, which is, of course, federal in scope and orders food processing plants open but does not mandate any COVID-related safety rules. (The Commonwealth of Virginia has ten poultry processing plants.)

Virginia’s new regulations have far-reaching implications for employers with facilities (not necessarily headquartered) within the state. These include not just the “usual suspects” of social distancing, furniture/office space rearrangement, cleaning, disinfection and upgraded office maintenance, but also two key HCM-related functions. First, employers must step-up screening of employees on office entry for “suspected” cases of the disease – fever detection, symptom-related questions, etc.), and second, employers must provide more formalized training for every employee to ensure that they understand the “do’s and don’ts” of viral contagion. Simply put, best practice in employee training is no longer limited to simple actions like “sign this policy to indicate your acceptance and we’ll keep it on file.” Rather, employers need to supply training that is liberally interspersed with evaluations to ensure employees don’t simply acknowledge the content, but fully comprehend it as well. These evaluations, quiz result question-and-answer sets, and final exam details will be an important factor in employers proving they “went the extra mile” in what is, at best, a murky compliance setting.

While only Virginia, at the date of this writing, has passed formal regulations, as employers we can bet that 49 other states, not to mention countless counties, cities and other jurisdictions (school boards?) are watching Virginia’s experience VERY carefully, poised to take action if this approach to regulation is successful and offers employers the guidance they seek.

In our next blog post in this series, we’ll focus on the tools available to employers to help with one of the most important decisions for maintaining a healthier workforce: work-from-home vs. communal working space status.

In the meantime, here’s a quick COVID brain-teaser (to be answered in the next column): which state recently published a gubernatorial executive order around the coronavirus, that has the potential to up-end the state workers’ compensation system?