While we’ve been quiet on the Coronavirus front for the last couple weeks, there have been some recent developments across the country.  As seen in recent spikes in states at varying stages of reopening, Coronavirus is anything but gone, and it is still possible for widespread outbreaks to occur.  Even Minnesota, which has been one of the most conservative states with regard to getting back to work, has not been able to avoid outbreaks.

Last week, as part of its effort to assist employers in getting employees back to work safely, the Occupational Safety and Health Administration issued new guidelines for employers whose employees are returning to work.   These guidelines closely resemble the rules put in place for employers who were allowed to bring non-essential employees back to work in early May.

The guidance from OSHA is fairly simple, but does require some planning.

1. Employers should conduct hazard assessments of their workplaces in order to determine where Covid-19 is likely to enter the workplace.
2. Employers need to have rigid hygienic standards in place for employees and make sure employees follow them.
3. Employers should limit business occupancy and create firm guidelines for social distancing.
4. Employers need to develop protocols for managing employees who become ill in the workplace and how long it will be before they can return to work.
5. OSHA recommends that all employers put in place engineering and administrative controls, safe work practices, and personal protective equipment, including ensuring that workers are wearing the appropriate face coverings, such as cloth masks.

OSHA also encourages maintaining workplace flexibility and training for employees on the signs, symptoms and risk factors associated with Covid-19.  In its final guiding principle, OSHA emphasizes that employers should have practices for ensuring that no adverse or retaliatory action is taken against an employee who adheres to workplace safety guidelines or raises safety or health concerns.

For those who are not familiar with OSHA’s laws against retaliation, workers have the right to refuse to do a task if the following conditions are met:

• Where possible, the employee has asked the employer to eliminate the danger, and the employer failed to do so; and
• The employee refused to work in “good faith,” meaning the employee genuinely believes that an imminent danger exists; and
• A reasonable person would agree that there is a real danger of death or serious injury; and
• There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

That takes us back to the use of masks in the workplace.  Both OSHA and the CDC are still advising that when in the public, people wear masks in order to contain the spread of respiratory secretions from the wearers.  Many states have required that individuals who go out in public do so.  Yet, (in case you haven’t noticed) thousands of people are leaving their homes and entering the workplace without wearing masks, and are not being required to do so by their employers.

So what happens when you don’t have a policy requiring masks and allow your employees to decide whether or not they’ll wear a mask?  What happens if an employee refuses to work if his co-workers are not wearing masks while at work?  How about an employee that refuses to come to work if customers are not required to wear a mask?  How do you respond?

This is dangerous territory for employers.  Obviously, the easiest option is to require those working for you, and customers who patronize your business, to wear masks whenever they enter your facility.  If an employee refuses to work based on their employer’s refusal to enforce safety precautions, and receives negative treatment because of that, the employer could be on the wrong end of a retaliation claim from the employee.

Employers have had a lot to think about over the past four months.  Most employers are just trying to do their best to keep their businesses running while trying to keep their employees safe.    If you or your organization have questions on how to maintain a safe workplace or responding to employee safety concerns in a legally defensible manner, contact the Wiley Law Office, for advice that works.