Monitoring the Risks and Tracking Cases of COVID-19 Exposure in the Workplace

Coronavirus in the Workplace

Business in the time of COVID-19

Whether you were an essential business that stayed open throughout the mandatory state closures, are a business that recently opened under new restrictive guidelines or are one of the companies still trying to weigh the pros and cons of opening in these uncertain times, you are not alone if you are feeling confused and overwhelmed by both the wealth and lack of information on how to best proceed. From questions about the legality of taking and recording employee temperatures to ensuring an adequate supply of PPE and cleaning products when shortages still exist, there is a lot to take in and still so much we just simply don’t know.

Employer Risks in the Workplace Due to COVID-19

Up until the relaxation of stay-at-home advisories or orders, many employers have been focused on managing unemployment claims due to temporary business closures, furloughs or layoffs necessitated to keep afloat. As business starts up again, there are so many more things to consider in addition to the stresses of simply trying to run a viable company in the “new normal” that sometimes requires a new business model entirely to survive:

  • Workers’ Compensation claims due to exposure on the job
  • Potential tort liability claims for any suits not covered by Workers’ Compensation immunity.
  • Maintaining adequate records to help in contact tracing if needed while also not infringing on privacy, ADA or HIPPA rights.
  • Ensuring an adequate supply of PPE and Cleaning Products as recommended by the CDC and other state guidelines.
  • Required OSHA reporting of COVID-19 as a workplace illness
  • Wage and hour disputes and workers’ compensation from remote workers
  • Staff shortages due to challenges in recalling workers currently on unemployment, recruiting and hiring new workers or increases in absenteeism due to illness or child-care complications for employees.
  • Liability claims by customers.

Workers’ Compensation Claims

As a new workplace risk, there are few if any court decisions or guidelines (except in the case of healthcare workers) available to determine whether or not COVID-19 infections caused by a workplace exposure will be considered a covered Workers’ Compensation claim. According the a FAQ section on the National Council on Compensation Insurance (NCCI) website, in response to the question, “Is COVID-19 compensable under state workers compensation acts?” the answer is “maybe.”   While there is limited current case law, there have been a number of lawsuits filed on behalf of workers involving claims against their employers for unsafe work environments and COVID-19 infections sustained while at work, so this will continue to be a topic to keep on the radar.

Employer Tort Liability

So if a workers compensation claim only has the potential of “maybe” being compensable under a state’s workers compensation act (as noted above), then it also may have the potential to become a tort liability claim against an employer in cases where the incident is not covered as a workers’ compensation claim. And if it is not covered by workers’ compensation, then the immunity afforded by workers’ compensation would not exist.

Workplace Illness Reporting on OSHA Form 300A

Unlike the flu or common cold, coronavirus outbreaks at work may be considered by OSHA to be recordable as an infectious disease in the workplace under 29 CFR Part 1904 if the following criteria are met:

  • The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);[1]
  • The case is work-related as defined by 29 CFR § 1904.5;[2] and
  • The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.[3]

So it is important for you to maintain the proper documentation particularly when you learn an employee has tested positive for the virus. If an employee tests positive for the virus and you believe the infection/exposure occurred in the workplace, you will want to log it and complete incident reports via OSHA Forms 300, 300A and 301. If you are a private employer who has had 10 or fewer employees throughout the entire calendar year or are an employer in a “low-hazard” industry as defined by OSHA regulations, then you may be either completely or partially exempt from this requirement. In some states, state and municipal employees may also be exempt from OSHA regulations if in a state that did not opt-in to the federal OSHA program in which case you will want to check state and local laws to determine if similar tracking of COVID-19 or other infectious diseases in the workplace is required.

Protecting Employees and Mitigating Risk

Even if your business is not regulated by OSHA for reasons noted above, their standard for protecting employees is a good guideline in your decision making. They have even created an advisory document called Guidance on Preparing Workplaces for COVID-19 for reference. Ultimately, employers must provide a workplace free of known health and safety hazards. Where coronavirus is still currently a known hazard in most areas of the US, employers should take the appropriate steps to reduce the risk of exposure for their employees by taking necessary precautions, including, but not limited to:

  • Providing Personal Protective Equipment such as face masks, shields, sneeze guards and other barriers for both employees and customers.
  • Educating staff on proper hand washing and other protocols to not touch their eyes, face and nose and to sanitize or wash hands after if they must.
  • Posting mandated labor law posters including the FFCRA Employee Rights poster along with hand washing and hygiene guidelines.
  • Monitoring employee temperatures and completion of employee questionnaires on travel, possible exposure to positive patients, etc.
  • Ensuring that people who are sick stay home.
  • Research CDC and state guidelines for your industry to implement recommendations as needed.
  • Make sure your coronavirus-related policies are in writing and have been reviewed by employees.

CheckmateHCM Solution can aid you in a number of these procedures, including having employees complete their daily questionnaire upon clocking in, distributing policy updates and having employees electronically acknowledge receipt and providing PTO tracking capabilities to ease requested time off and custom codes to track any time taken due to covered COVID-19 related illness or family medical leave. We also have a Labor Law Poster compliance program that provides a service to distribute mandated posters to remote workers via email.

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Disclaimer: The information compiled on this page was written for general information purposes only and does not constitute legal, tax or other financial advice for an individual or specific company.  Each individual’s and entity’s specific legal, tax and/or financial circumstance can vary greatly. As such, we advise consulting with your attorney, CPA and/or other professional advisors to ensure you are following and complying with all necessary guidance and regulations based on your specific circumstances and/or internal policies, procedures and corporate structures.