On March 10, AmTrust Financial presented the webinar, Updated COVID-19 Guidelines: What Businesses Should Do Now to Avoid OSHA Penalties and Legal Pitfalls, to explain what businesses need to know to implement the new guidelines and to get ready for increased OSHA enforcement. AmTrust's Kelley Barnett, VP Corporate Counsel – Labor and Employment and OSHA 30 Certified and Jeff Corder, VP of Loss Control, explained why businesses should care about the updates, as well as the consequences of ignoring them.
OSHA COVID-19 Guidelines Update
During the webinar, Barnett walked through each of the updated OSHA COVID-19 guidelines, which are recommendations for how management and employees play a role in developing and implementing the revised safety requirements and how to mitigate related legal risks. She provided practical pointers for implementing the guidance, and she explained the legal risks to consider and the hazards to avoid with implementation.
State OSHA Coronavirus Plan Highlights
On top of the federal OSHA COVID-19 recommendations, some states also have their own workplace safety requirements. Barnett described specific COVID-19 guidelines for:
Increased OSHA Enforcement (Federal and State)
One of the aspects of the updated COVID-19 guidelines is the potential for increased OSHA enforcement on both the federal and state levels. Barnett explained that worker complaints, workplace accidents and injuries requiring hospitalization or amputation are just a few of the types of incidents that could prompt an OSHA visit.
To prepare for an OSHA inspector visit, businesses should have a plan already in place with a designated contact and an inspection toolkit and OSHA records in order. Also, make sure you walk the floor before the OSHA visit to check for hazards.
When OSHA does arrive, escort the inspector to a designated private room and ask for an explanation for the visit. The business's designated contact should join the OSHA inspector as they walk your worksite and should document and mirror the inspector's every move. Also, make sure to document and promptly respond to OSHA record requests.
Questions Following the Webinar:
Can you talk a little more about how to address if COVID-19 is or can be determined "work-related"?
This can be such a gray area. It can be challenging to determine whether an employee's COVID-19 illness is work-related, particularly when the employee had exposures both inside and outside the workplace. OSHA expects businesses to conduct a reasonable investigation as to whether or not an illness was work-related by asking the employee how he or she believes they contracted the virus, respectfully asking the employee about activities both in and outside of the workplace which may have exposed the employee to the virus, reviewing the employee's work area, and asking the employee whether he or she has come into close contact with anyone who has or is suspected of having COVID-19. An outbreak among employees who work in the same area, an employee who has regular, frequent exposure to the public (as part of his or her job) in a community with significant community spread, or close contact with a coworker who has tested positive for COVID-19 all weigh in favor of a determination that the exposure was work-related.
Regardless of what an employer's investigation reveals, OSHA has stated that it does not expect employers to conduct extensive medical inquiries and will consider an employer's good faith when reviewing an employer's determination of work-relatedness. Employers should also document their investigation to justify their work-relatedness determination or at least demonstrate that an investigation was conducted in good faith.
When mandating vaccines, if someone dies or has a severe reaction, does that become an OSHA recordable and possibly reportable event?
If an employee suffers an adverse reaction to the vaccine administered pursuant to an employer's mandatory vaccination program, the reaction is recordable if it meets OSHA's general recording criteria contained in 29 CFR 1904.7 (death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness or a significant injury or illness diagnosed by a physician or other licensed healthcare professional).
In addition, a work-related fatality must be reported to OSHA if the fatality occurs within 30 days of getting the vaccine; a work-related inpatient hospitalization must be reported to OSHA only if the hospitalization occurs within 24 hours of getting the vaccine.
If required to offer the vaccine and there are side effects now or later, is it considered workers' compensation? Depending on the state in which an employee works, if an employee receives the vaccine due to an employer's mandatory vaccination policy, and the employee experiences serious side effects or some other vaccine-related injury, such side effects or injuries could qualify as a compensable injury under certain state workers' compensation schemes.
How is OSHA monitoring COVID-19 precautions in private companies?
OSHA monitors private employers in a number of ways, including through inspections triggered by complaints (including anonymous complaints) submitted to OSHA by employees, imminent danger situations, fatalities, workplace accidents, OSHA recordkeeping compliance issues, and regional or national emphasis programs.
If we have received results of a COVID-19 test due to exposure, can we keep it in the cloud-based employee account of our agency management system that is only accessible by management?
Under certain circumstances, cloud-based platforms can be used to store confidential employee information, with limited access to such information, given only to those who need to know, such as an employee's direct manager and Human Resources. However, businesses should carefully select a cloud service provider by reviewing the provider's security and compliance programs, confirming the provider's compliance with applicable regulatory requirements and security standards, researching and assessing the cloud provider's history and reputation for ensuring security and privacy of sensitive information, and incorporating your security and privacy requirements in a servicing agreement. In addition, it is important to remember that, since a COVID-19 test result is considered confidential medical information, it must be stored separately from the employee's personnel file.
If an employee is feeling sick with COVID-19-like symptoms, if they choose to share with other employees that they are or have gotten tested, is that anything an employer can control? How, as an employer, do we keep test results confidential, especially if someone is positive?
Employees can choose to voluntarily share their private medical information with others in the workplace. However, unless an employee provides written consent authorizing companies to disclose or discuss their medical information or companies are required to disclose such information due to a court order or specific law, companies are still obligated to treat that information as confidential by refraining from discussing or disclosing such information with or to others in or outside of the workplace, and by maintaining such information separately from an employee's personnel file with limited accessibility. This includes information about the employee's COVID-19 symptoms, COVID-19 test results and COVID-19 vaccination status.
What if an employee comes to me for his or her concern for the person sitting next to him or her not taking the vaccine?
We know that not all employees will get vaccinated for personal reasons. However, because vaccination status is considered confidential medical information, employers are not permitted to disclose an employee's vaccination status to other employees without the employee's express written consent. Furthermore, asking an employee why they did not receive the vaccine may elicit information about a disability and could therefore run afoul of the Americans With Disabilities Act and similar state laws.
If any employee expresses concerns about a coworker's vaccination status, let the employee know that you cannot share that information but remind the employee to follow the safety precautions you have implemented (washing hands, practicing physical distancing and wearing a mask).
Can employers ask/encourage vaccines?
Many companies are opting to encourage, rather than require, employees to get vaccinated by educating employees about the safety and benefits of the vaccine and offering incentives to get vaccinated. However, companies must be mindful when providing incentives. They should avoid providing high-value incentives to employees, which may convert a voluntary vaccination policy into a mandatory one due to the coercive nature of the incentives being offered.
In addition, to avoid potential discrimination claims, companies may need to provide accommodation to employees who cannot get the vaccine due to certain qualified disabilities or sincerely held religious beliefs. The accommodations should enable such employees to earn the same incentive being offered to all employees.
This week's CDC guidelines say a fully vaccinated person must wear a mask around a non-vaccinated person from two or more households. Yet, Kelley said we couldn't share information with the staff about who is vaccinated and who is not. Then, must we all continue to wear masks?
The CDC's guidance, while promising, is only part of a broader patchwork of recommendations, guidelines and requirements. State and local orders and rules, in addition to OSHA's January 29, 2021 guidance, should be considered by all employers before modifying policies or easing restrictions for fully vaccinated employees. The current OSHA guidance and guidance provided in some states and the CDC advise that employees should continue to wear masks regardless of vaccination status. Furthermore, creating different rules for vaccinated and unvaccinated employees could invite claims of discriminatory treatment based on disability, religion or pregnancy and may impact employee morale. Therefore, regardless of vaccination status, for now, employees should continue to wear masks, particularly when physical distancing in the workplace is challenging.
Following Updated COVID-19 Guidelines: A Safe and Healthy Workplace
The updated OSHA guidelines focus on a safe and healthy workplace, emphasizing worker involvement in developing and implementing COVID-19 workplace prevention plans. The guidelines also protect workers from retaliation for reporting issues with COVID-19 safety requirements and ask employersto consider protections for workers at higher risk of severe illness, including older and disabled employees.
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