As Massachusetts begins to reopen during the COVID-19 pandemic, businesses face multiple challenges. First and foremost, they must establish a safe working environment for employees and visitors. Special attention should be paid to protecting “high risk” employees (as discussed below). Workplace safety policies must be implemented in a nondiscriminatory manner that is consistent with applicable privacy laws.
Now more than ever, employers should have effective and up-to-date workplace safety policies. Businesses should conduct a comprehensive review of their employee handbooks and procedure manuals. They should strongly consider issuing a separate set of policies specific to COVID-19.
Governor Baker recently issued Mandatory Safety Standards for Reopening. These can be found at the following link: https://www.mass.gov/info-details/reopening-mandatory-safety-standards-for-workplaces Companies must certify their compliance with several standards. First, workers must wear face coverings, and social distancing measures must be in effect. Second, hand washing facilities must be available, and “high-touch” areas must be sanitized often. Third, staff have been trained about hygiene and social distancing. Fourth, thorough cleaning and disinfecting protocols must be in place. Additionally, companies must offer training about these and other safety standards. For example, staff must be instructed not to report to work with a COVID-19 diagnosis or potential symptoms.
Certain businesses must comply with additional safety guidelines for their industry. In connection with “Phase I” of a four-part reopening plan, Massachusetts has issued safety regulations for offices, manufacturing, construction, salons, and other industries.
As companies bring back their workers, care must be taken to avoid potential discrimination. Workers should be recalled based on legitimate business considerations. Recall decisions should not consider age, disability, or any other “protected” status. Most employers are subject to federal and state laws that broadly prohibit discrimination.
Employers should further evaluate who needs to return to the workplace, and who can work from home. Employers should strive to protect vulnerable (“high risk”) employees by minimizing risks of COVID-19 exposure. Companies should offer teleworking where possible and/or work assignments that limit interactions with others.
According to the Centers for Disease Control and Prevention (CDC), high risk workers include “individuals over age 65 and those with underlying medical conditions.” These conditions include chronic lung disease, asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, liver disease, and chronic kidney disease. High risk workers are encouraged to identify their needs. However, companies must be careful with their messaging to high risk workers. They must avoid unlawful inquiries regarding medical conditions or disability status.
The CDC further suggests that employers consider daily health checks for potential COVID-19 symptoms and temperature checks of all employees in accordance with applicable privacy laws. Employees with a fever, cough, shortness of breath, or other symptoms should be sent home immediately. When COVID-19 exposure is suspected, companies must act promptly to notify persons at risk (e.g. coworkers and customers) and to inform local health authorities. At the same time, screening and notification programs must protect employee privacy. Improper disclosures can violate federal and state privacy laws.
Finally, workers are entitled to a safe workplace in accordance with standards issued by the Occupational Safety and Health Administration (OSHA) and other agencies. Employees have a right to raise health and safety concerns without fear of retaliation.
For a more detailed discussion, please see our Client Advisory on Phase I Reopening.
Morenberg Law offers a comprehensive review of employer policies to ensure compliance with COVID-19 safety standards. We can recommend strategies to reduce occupational safety and discrimination complaints and to manage legal risks. Please contact us for a consultation.
NOTE: This blog post is provided for informational purposes only. It does not constitute legal advice.
