Employers must revisit workplace compliance amid COVID-19 pandemic
Amid the massive upheaval brought by the COVID-19 pandemic, employers need to reevaluate their regulatory and compliance programs and policies, both with an eye toward the letter of the law and the spirit of the times, workplace policy experts caution.
That's going to involve everything from revisiting policies governing telework to regulatory compliance in areas like OSHA's regulations concerning the employer's duty to maintain a hazard-free workplace and to provide personal protective equipment when needed to ensure workers' safety.
This may be a culture shock for many businesses that haven't generally had to reckon with OSHA rules, said Carrie Cherveny, senior vice president of strategic client solutions and compliance at HUB International, an insurance brokerage and business consultancy.
"Pre-coronavirus, most white-collar, call-center environments didn't really think a while lot about providing a safe working environment, because there wasn't a whole lot of risk associated with call centers and desks and offices and computers," Cherveny said during a recent online presentation on the workplace response to the pandemic.
"But post-coronavirus, I think all of our worlds have changed and continue to change and evolve dramatically, and one of the things we have to consider is exposure to folks who may have been diagnosed or may have been exposed to the coronavirus," she said. "What is it as an employer that we can do, should do, not do to ensure that we provide a safe working environment?"
For employers that are considering using masks to help limit the spread of the coronavirus, Cherveny cautions that the N95 masks favored by experts are actually classified as respirators, and carry their own set of OSHA regulations regarding training and use in the workplace.
"It's important to know that not only are there regulations around safety, but there's regulations around the equipment that you may use to keep your people safe," Cherveny said.
OSHA has published lengthy guidance to help businesses respond to COVID-19, urging all employers to develop an infectious disease plan, and to gird for extended absenteeism, disruptions in the supply chain and shifting patterns of commerce.
"Lack of continuity planning can result in a cascade of failures as employers attempt to address challenges of COVID-19 with insufficient resources and workers who might not be adequately trained for jobs they may have to perform under pandemic conditions," OSHA cautions.
OSHA stipulates that its guidance is just that — not a new rule or regulation and carrying no new legal responsibilities. Still, the agency is urging employers to take stock of the risk factors that could spread the disease among their workforce, and to consider measures that encourage social distancing, such as staggering shifts or delivering services remotely.
And remote work, in industries that can accommodate it, is becoming a reality for many firms, particularly as officials contemplate requiring businesses to keep their workforce at home, as New York and California have.
"Certainly in response to public health safety, if anyone is potentially symptomatic, or if there's a concern of their exposure, telecommuting may be an option," said Mingee Kim, a senior vice president at HUB International.
"One of the things that you'll have to then contemplate is what does that telecommuting policy look like — do employees have access to technology? What protocols do you have in place for cybersecurity?" Kim said. "What we're hearing is that employers who have never really had to deal with this before and are having to deal with it now, is a lot of questions on what type of security protocols they also have as people are now away from the typical brick-and-mortar job location and having to work remotely."
Even for employers that aren't working under a work-from-home mandate, permitting telework for individuals who may have been exposed to the coronavirus could be a compliance requirement under the "reasonable accommodation" provision of the Americans With Disabilities Act, Kim noted, urging employers to be "a little more generous and flexible" in their telework policies during the pandemic.
Kim and Cherveny counsel employers to take a holistic look at their response to the coronavirus in light of the various workplace regulations under which they operate, including the Family Medical Leave Act, which could apply to employees who have been diagnosed with coronavirus or are self-quarantining because of exposure to it.
For all the disruption that the pandemic has brought, many of the old rules still hold. For instance, Cherveny described a conversation with a client who floated the idea of requiring all workers over the age of 50 to stay at home, given the reports that older people are at greater risk from the virus. It was a well-intentioned idea, but as a workplace policy it was a non-starter.
"That is absolutely age discrimination," Cherveny said.
On the other hand, employers have every right — responsibility even — to take steps to minimize risks at the workplace by forcing employees in certain cases to stay at home. Employers might want to take that step with employees who are coming back from vacation in an area where infections were high — or if they passed through a heavily infected area on their trip.
"If employees are going to areas that pose a risk, or if you believe that travel in and of itself is a risk, you can require an employee to self-quarantine," Cherveny said. "You can absolutely do that with your employees."