May 13 2020
Categories: HR Solutions
Your business faces potential liability from Employees, Clients and Customers in the wake of COVID-19. An Exposure Prevention Response Plan is a critical step in managing these new business liabilities through written safety procedures, employee training and record keeping.
See the below recent update regarding legislative action:
Debate over business liability in pandemic turns to OSHA regulation, CDC guidance
The Future of Liability
Employees:
Exposure Prevention
General Guidance to Consider:
- Social distancing
- Separate work stations – 6′ apart
- Staggered work shifts, breaks and lunches
- Assigned doors for entrance/exit
- PPE (masks, gloves, face shields)
- Hand sanitizer and EPA approved cleaning supplies
- Bleach/water mix with rags to clean surfaces
Written Employer Response Plan – includes:
- COVID-19 Assessment and Control Plan
- Employee Training with signed Acknowledgement of Training
OSHA Guidance to assist in assessing workplace and creating your response plan:
CDC Guidelines:
OSHA
The OSHA General Duty Clause states that each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees; and shall comply with occupational safety and health standards promulgated under the OSHA Act; and each employee shall comply with occupational safety and health standards and all rules, regulation, and orders issued pursuant to the Act which are applicable to his own actions and conduct.
To help understand your COVID-19 documentation responsibilities, reporting duties, and investigation expectations to OSHA, the Michigan Chamber of Commerce is offering a free live webinar on Thursday, May 14th @ 10:00 am. Register for the webinar using the link below. A recorded version will be available on-demand shortly after the live webinar.
Webinar – Navigating OSHA Amid the COVID-19 Pandemic
OSHA Recordable
Is there a requirement to notify OSHA, CDC, or state/local authorities regarding a positive COVID-19 case in the workplace?
The answer to this may vary by state or local authorities. We advise consultation with those authorities depending on where you do business. Typically, those authorities will notify the CDC.
According to OSHA, COVID-19 would be reportable, “If an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.”
Given this general definition of “recordable” and the lack of conclusive evidence proving where and how it was contracted, it will be difficult for employers to determine whether a positive COVID-19 case is connected to the workplace. However, documenting the steps taken to reduce the risk of COVID-19 in the workplace, a written pandemic response plan with employee training, and following CDC Guidelines may reduce the opportunity to connect a COVID-19 diagnosis with the workplace.
“OSHA Recordable does not mean it is Workers Compensation “Compensable” – these are two separate issues. Coronavirus may be a humankind exposure rather than one peculiar to most employments. Contracting the virus at work is not enough to trigger the assertion that it is a compensable occupational illness. To be occupational and compensable requires something peculiar about the work that increases the likelihood of getting sick.”
[1] – Chris Boggs, Source: https://www.independentagent.com/vu/vu/Insurance/Commercial-Lines/Workers-Compensation/BoggsCoronavirus.aspx
An interesting “work related” claims example, outside of healthcare or first responders, would be Smithfield Meat Packing. These COVID-19 deaths and diagnoses, may meet the definition of “Peculiar” to their work, therefore may be compensable.
Keep in mind that it is sometimes difficult to link exposure to COVID-19 to any one place or source. Nevertheless, employers should take all possible steps to maintain a safe workplace, including following CDC guidance.
Points to Consider:
- All workers compensation claims, or notice of claims, must be submitted and coverage will be determined by the Insurer.
- A majority of group health plans are covering all COVID-19 testing and treatment without out of pocket costs to the employee.
- Families First Coronavirus Response Act (FFCRA) – Sick Leave Pay – Latest Update 3-20-20
How successfully you manage and implement your written response plan, training and record keeping will determine the outcome of any potential liability allegations.
Strong leadership and management are key to surviving. We have many insurer and industry resources available, please reach out to us.
Look for our next article in this series
“WFH, the Cyber Hacker’s Dream”