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Attorneys advise employers on safety protocols as workers return
SHERRY KARABIN
Legal News Reporter
Published: June 26, 2020
When Ohio Gov. Mike DeWine issued a stay-at-home order in late March, many employers began allowing large numbers of employees to work remotely.
Now as the state nears a full reopening, companies are facing challenges as to how to bring those workers back while ensuring their safety and that of their customers or clients during the ongoing pandemic.
As Vorys, Sater, Seymour and Pease partner Chaz Billington explains, while there is no single action or policy that can protect everyone from exposure to COVID-19, there are still best practices employers can follow to help ensure that their workplace is “free of known health and safety hazards.”
Billington said he starts by familiarizing his clients with all general and industry-specific federal and state health and safety guidelines.
He advises companies to create a working group or a safety committee that is responsible for coming up with, implementing and monitoring company protocols. The group or committee should be comprised of employees from every level of the organization from the top down, said Billington.
“The committee should determine potential points of exposure, how that exposure can best be reduced and how to proceed should a worker or customer become infected or exposed,” said Billington, who works out of the firm’s Cleveland office and is a member of the labor and employment group. “The committee should develop an emergency preparedness and response plan that deals with potential infection and those responsible for the plan need to be trained in its implementation before workers return to the office.
“Consistent and thorough training of your workforce regarding your company’s workplace health and safety protocols and emergency plans is often overlooked, or only paid lip-service, but it’s absolutely critical to the success of those plans. It’s difficult to overtrain in this case.”
When developing protocols, Billington said employers need to consider ways to protect everyone in the workplace, whether it is customers, visitors or the employees who greet them.
“Consistent with governmental guidance, I would advise businesses to institute uniform temperature-taking policies, whether through employee self-certification or actual temperature screening performed by the employer,” he said. “Social distancing is also required. Employers should try to ensure that everyone is six feet apart, and if that’s not possible, consider installing plexiglass partitions that separate workers from one another and from customers and visitors.
“There should be increased ventilation or air circulation, hand sanitizing stations and common areas, workspaces and equipment should be disinfected daily.”
Roetzel & Andress shareholder Karen Adinolfi said protocols also need to be developed for meetings, informal conversations, lunchrooms, restrooms and any other place employees might gather.
“The guidelines should include when and where an employee is required to wear a mask, limits on where and how many people can gather and how compliance will be enforced,” said Adinolfi, who focuses her practice on employment law.
“If temperature checks are a part of the protocol, employers need to determine who will do them, where they will be done, for example upon entering the premises and what will happen if an employee, visitor or customer has an elevated temperature.
“The protocols will depend upon the size, layout and type of workplace,” she said. “There is no one-size-fits-all type of approach.”
Companies should consider allowing employees who can continue to work from home to do so and staggering the return of those who are needed on the premises, said Adinolfi.
COVID-19-specific workplace health and safety protocols should be distributed to all employees prior to their return, said Billington.
“I would recommend disseminating the information electronically and having the employees check a box acknowledging they have read and agree to the policies,” said Billington. “Companies that get a lot of website traffic should post their policies on the website so customers and visitors are aware of what’s being done and any protocols they may have to follow if physically coming to the premises.
“Those policies should also be posted around the worksite to remind employees of their shared responsibilities in keeping the workforce and customer base healthy and safe.”
“If an employee notifies the employer that they do not feel that they can return to the workplace because of some underlying medical condition that makes them more vulnerable to COVID-19, the employer should undergo the interactive process under the Americans with Disabilities Act to see if there is some reasonable accommodation, such as extending the work-at-home period or additional precautions in the workplace, that can be implemented,” said Adinolfi.
In searching for ways to reduce potential liability, Billington said many businesses are considering liability waivers for employees and customers.
“Waivers are a tricky subject, especially when it comes to employees,” said Billington. “Generally, the state workers’ compensation system is the exclusive remedy for workplace injuries, including, potentially, a COVID-19 exposure.
“It is doubtful a waiver would protect an employer against an intentional tort claim brought outside the workers’ compensation system,” he said. “And I doubt a waiver would protect against a claim from an employee’s family member who claims exposure stemming from the workplace.”
Employee waivers also may come with unexpected side effects, like discouraging workers from returning to the workplace, decreased morale or negative publicity, he said.
“When it comes to employees, you’re better off taking every reasonable step to ensure a safe and healthy workplace consistent with state and federal guidelines and clearly communicating your efforts and expectations to your workforce,” he said.
In the case of visitors or customers, Billington said waivers may be effective in reducing liability and can be worked into current and customary agreements, like vendor contracts or existing customer or visitor waivers and assumption-of-the-risk acknowledgements.
However, he cautions that, as with employee waivers, employers should consider the potential negative side effects, such as unfavorable publicity or the reluctance to visit and conduct business with the company.
“Keep in mind that waivers are no substitute for thoughtful planning and comprehensive policies, practices and protocols around workplace health and safety,” Billington said.