By Sara Counihan

ALEXANDRIA, Va.—The NACS HR Forum took place this week, and top of mind for employers are the legal impacts of COVID-19. In his presentation, partner Travis W. Vance of Fisher & Phillips reviewed issues surrounding COVID-19 and the pressures it has placed on employers of essential workers.

Quoting entrepreneur Mark Cuban, Vance said that the actions you take as a company in response to the COVID-19 pandemic define your company for decades to come.

Vance said to consider two guideposts when making every decision relating to the pandemic:

1. How it will impact employee relations: “If I fire someone because of safety violations, how will that affect their fellow employees?”
2. How it will be viewed by the public: “You could do something that is perfectly legal, but it ends up on social media, and that could cost you a lot more in public perception and employee morale.”

Legalities of COVID-19 in the Workplace

Vance continued the presentation by discussing the legal risks of COVID-19 and compliance with COVID-19 guidelines. He talked about OSHA/MSHA complaints and whistleblower claims and again emphasized how important it is to have a written COVID response plan in place in order to combat these claims.

He mentioned workers’ compensation claims and how some states are saying that if an employee contracts COVID-19, it’s presumed to be contracted on the job. Vance said the employer and its insurer can fight back against that presumption by showing its COVID-19 response plan, training and safety protocols. “If you don’t have those in place, it’ll be much more difficult,” he said.

Vance talked about how to restart a plan of action now that it’s been a year since COVID-19 became an imminent threat in the U.S. He advised that employers take a step back and look at what supplies, goods and materials are truly necessary to operate.

“Ask yourself: How is our cleaning? Are we training employees on the chemicals they’re using to clean? Do we have enough personal protective equipment? Is there a COVID-19 response team in place, who’s charged with making sure we’re compliant with all these rules, and who’s charged with making sure we’re complying with social distancing?” said Vance.

Vance touched on the hot button topic of vaccines. Employers have the right to mandate vaccines; however, mandating vaccines may result in disgruntled workers, according to Vance. You’ll also have many with religious and medical accommodation requests, so it’s impossible to mandate that everyone get a vaccine. “There’s no such thing as a mandatory vaccination policy. Most of our clients are going with a highly encouraged vaccination process,” said Vance.

Workplace Safety

Vance said his firm has seen companies ask their employees to sign waivers, but he doesn’t recommend using them.

“OSHA won’t hold them up, and it looks bad from a public and employee perspective. They make it seem like your company is a dangerous workplace,” he said.

An alternative he recommends to waivers is a signed acknowledgment, which allows employees to affirm that they understand the company’s COVID-19 response plan, they’ve been trained on it and they’re going to follow it. “That is your best protection possible,” Vance said.

If an employee refuses return to work, don’t expect an OSHA complaint as OSHA’s threshold is very high. The employee needs to be placed in a near death or serious harm situation for OSHA to step in. However, companies don’t want employees to claim such a situation, so Vance advises that employers educate employees, listen to their concerns and engage them so they won’t be refusing to work in the first place.

When an Employee Tests Positive…

If an employee tests positive for COVID-19, Vance recommends this four-part process:

1. Isolate/quarantine confirmed employees
2. Address and isolate employees working near an infected co-worker:
   Vance says to conduct a 6-15-48 review. You should ask infected employees to identify all individuals who worked in close proximity (within six feet) for 15 minutes or more from the 48-hour period before the onset of symptoms until the infected employee is cleared to discontinue self-isolation.
3. Clean and disinfect your workplace:
   After a confirmed COVID-19 case, follow the CDC guidelines for cleaning and disinfecting the workplace. Your cleaning staff or a third-party sanitation contractor should clean and disinfect all areas (e.g., offices, bathrooms and common areas) used by the ill person, focusing especially on frequently touched surfaces.
4. Notify your employees
   Following a confirmed COVID-19 case, and as recommended by the CDC, notify all employees who work in the location or area where the employee works of the situation.

Other Legal Updates

Vance said that the Trump Administration cut OSHA inspectors to the lowest level in its 49-year history, approximately 761 inspectors (there were approximately 1,000 a decade ago). President Biden promised to build up the number of federal OSHA inspectors, and according to Vance, it will take roughly 18 months to train new inspectors and begin conducting inspections. Employers can expect more OSHA inspectors knocking on their door after new inspectors are trained.

Vance also noted that a certain Obama-era reporting rule may receive new life, which would mandate certain employers to report detailed employee injury and illness information (including the information found on OSHA 300 Logs) to OSHA. Absent a successful legal challenge, OSHA would then make the information available to the public by posting it online. The goal is to create transparency and apply pressure for employers to comply with OSHA obligations.

Additionally, on May 12, 2016, OSHA published a final rule prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. The rule can apply to action taken under workplace safety incentive programs, injury and accident reporting programs, and post-incident drug testing policies. The rule states blanket automatic post-accident drug testing is improper because it has been shown to discourage employees from properly reporting injuries. Vance said the Trump Administration did not reverse the rule, but it has largely not been enforced.

Tomorrow’s Workplace

In closing, Vance emphasized two of the biggest HR impacts on the workplace. The first are COVID-19 vaccines. “Make sure you have a plan in place addressing vaccines clearly and communicate it to your employees,” he said. The second is a remote workplace. “It’s the new normal. What are your policies surrounding it from a waging hour and safety standpoint?” asked Vance.