How to reopen businesses safely with OSHA’s conflicting guidelines
OSHA's latest guidelines have placed full responsibility on employers to track and monitor employee COVID-19 cases.
As businesses reopen, employers need a roadmap on how to handle worker and customer safety as well as direction on the steps to take when an employee tests positive for COVID-19. Many employers are turning to the Occupational Safety and Health Administration (OSHA) for assistance on how to deal with cases of the coronavirus in the workplace, but the administration’s latest guidelines place full responsibility on the employer.
OSHA has instructed employers to manage their own questioning of employees on how they contracted the virus and what types of activities they were engaged in both in and out of work. For many employers, accuracy and efficiency in reporting seem next to impossible.
PropertyCasualty360 asked Gary Pearce, chief risk architect at Aclaimant and member of our 2020 Editorial Advisory Board, to provide insights on employers can navigate OSHA’s guidelines, including best practices when keeping track of workers who test positive with the virus.
PC360: What is the best approach for employers to take when questioning employees who have contracted the coronavirus? What information must they collect?
Pearce: Employers need a controlled, consistent approach that stays within the boundaries of government guidelines set forth by the Centers for Disease Control and Prevention (CDC), Equal Employment Opportunity Commission (EEOC), and Occupational Safety and Health Administration (OSHA). Employers must collect sufficient information to accurately assess risks to fellow employees and the general public, but cannot use COVID-19 as a pretext for other objectives, nor venture into matters not reasonably related to the COVID-19 risk assessment.
Information permissibly collected will include asking employees whether they are experiencing symptoms of the COVID-19 pandemic and taking temperature measurements. Additionally, employers can proactively ask whether reasonable accommodation will be needed upon return to the workforce, but any such practice should be consistently applied to all workers in a given job category.
The employer’s approach must be well-documented in order to establish evidence of compliance. Employers should recognize that once the pandemic no longer poses a direct threat to employee safety, the justification for conducting medical inquiries will likely revert to the former less-permissible standard.
PC360: What is the most effective way for employers to track employee infections, and what tools/resources can assist in this process?
Pearce: In all but the smallest instances, employers need technology to assist them in simultaneously ensuring that a controlled and consistent approach is in place, that they will have the necessary documentation should their practices be challenged, and that the cost of administering this process does not pose its own crisis.
The best tools will be linked to site assessments so inquiries can be particularized to premises conditions and allow for access customization to simultaneously ensure collaboration and confidentiality. These tools will have an integrated OSHA recordkeeping component and have proof of data security such as through a SOC 2 certification.
PC360: How can employers use this information to minimize risks?
Pearce: Organizations should take a step back and recognize that COVID-19 is likely to be a single episode in an ongoing process. There will be future events and exposures that, as with COVID-19, will require employers to have consistently applied best-in-class practices that are well documented and externally vetted in order to meet stakeholder expectations, ensure legal compliance, and minimize risk. The employer’s ability to withstand public scorn will be no better than its ability to prove that it consistently did all the right things to manage risk. It’s questionable whether manual processes, data silos, or fragmented approaches can satisfy those needs.
PC360: What types of legal liability do employers face as a result of documenting employee cases?
Pearce: Privacy violations can emerge from practically every aspect of COVID-19 risk management. So too can breaches of laws concerning employment discrimination, disability accommodations, and workplace safety. Attorneys will be recruiting sympathetic parties to build class-action cases based on allegations such as failure to protect the public or gross negligence in exposing employees to harmful conditions. And, apart from legal liability, we’re witnessing a new social environment where public scorn can have business consequences far more devastating than even class-action litigation.
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