Updated: Jul 15, 2020
By Rayan Omer
The law is changing as rapidly as the Coronavirus is spreading. A couple of weeks ago, small business owners were required to close their non-essential businesses and shelter at home. Now, these businesses are gradually reopening as the shelter-at-home order is loosening up.
Small business owners need to keep their businesses safe for employees' assurance. Otherwise, employees would be at risk of choosing between their income or their health. The government does not want employees to make these tough decisions, so it requires employers to make the necessary changes and to implement safety measures upon reopening their business to the public.
Closing small businesses has taken a toll on their owners, unlike big companies that can survive by operating from home or increasing revenue and resources during the lockdown. If the lockdown continues, such owners are in jeopardy for closing once and for all.
The law has allowed some small businesses to unlock their doors. Although exciting news, there are some unique dilemmas that small business owners will face as they return to work during a pandemic.
By planning, employers would avoid any pitfalls they may stumble upon due to their eagerness to reopen their business without enough knowledge. Small business owners should prioritize prevention measures rather than testing because the latter poses some challenges. Testing could be inaccurate, invasive, and costly for employers.
Under the Occupational Safety and Health Administration Act (“OSHA”), employers are required to provide a safe environment for employees that do not pose a risk of death or serious physical injury.
Providing a safe environment takes multiple shapes. People who have the Coronavirus can spread the virus through small droplets from the nose or mouth, which are expelled when they cough, sneeze, or speak. The virus can also spread if the droplets land on a surface that another person may touch. Here are some measures an employer can take to ensure a safe workplace:
Keeping a 6-feet social distance inside the business helps protect employees and the public from getting COVID-19 because an infected person’s sneeze or cough would not reach the other person’s face.
An employer can create social distancing by putting tape on the ground that helps customers know how to stay 6ft apart from each other. Social distancing would require physical modifications, such as evaluating the workplace layout, temporarily closing the break and locker rooms, any employer-provided meal, and snack benefits like vending machines. For more information on social distancing, check out these tips from Squire Patton Boggs.
An employer should also consider employee scheduling to reduce the crowding of employees by working different shifts to allow more space in the business. Employers should also consider keeping only the most essential workers present in the workplace while enabling others to telework or stay at home.
Another measurement is sanitization. It’s recommended to disinfect the workplace three times a day. Disinfection should happen once before work begins, midday and before closing. Providing the public with napkins and trash bins is beneficial. Also, requiring employees to frequently wash their hands is vital to safety. Employers should follow the Centers for Disease Control and Prevention’s (“CDC”) recommendations on best practices.
The employer should provide training during regular working hours on how the disease is transmitted, how to report possible cases, and self-isolation if there is suspicion or confirmed cases. This training is at no cost to employees. For more information, check out the U.S. Department of Labor.
Personal Protection Equipment (“PPE”)
Providing personal protection equipment, such as masks, helps disease prevention by ensuring employees do not touch their face and that employees do not spread bacteria via coughing or sneezing. PPE lowers the risk of sharing bacteria with others while maintaining social distancing. OSHA has provided interim guidance to help prevent worker exposure to COVID-19. This guidance applies to all U.S workers and employers.
Lastly, when thinking of a safe environment, employers should recognize personal risk factors for certain people. High-risk individuals include older people (65 years old and above) and people with underlying conditions, such as diabetes and heart or lung diseases. These groups would be threatened with severe complications if they were to contract COVID-19, according to the U.S Centers for Disease Control and Prevention ("CDC").
Even though OSHA does not provide on-site inspection, they do follow up with employees' complaints to make sure regulations are being followed. It’s imperative to provide a safe place for your employees to protect against claims regarding COVID-19 infections. For details on filing a complaint, follow the U.S. Department of Labor’s guidelines.
The disparity between large and small businesses in providing COVID-19 testing
Operating a small business during the pandemic poses different challenges. As big corporations may have the resources to test their employees, small business owners may struggle to provide these tests to help protect the safety of employees returning to the workplace.
Another challenge in testing, which was overcome by the Equal Employment Opportunity Commission’s (“EEOC”) new guidance, is the prohibition of testing itself by the Americans with Disabilities Act (“ADA”). Testing is only allowed if it is job-related and consistent with business necessity. If an employee with Coronavirus poses a threat to the health of others, under the EEOC’s new guidance, employers can administer tests to employees before they return to work so long as the test result is accurate and reliable.
Making sure the tests are accurate and reliable is another issue, especially for small business owners. There is no FDA approved test that confirms the reliability of results. Often, administering the test only once does not produce accuracy, because a person could test negative while being positive for Coronavirus. Thus, multiple rounds of testing are needed. As discussed above, this is an issue for small business owners because resources are limited, such that they cannot provide numerous tests for each employee.
Discrimination in testing
If small business owners have the resources for testing, whether it's checking the temperature of an employee or other testing measures, an employer should be mindful not to, even unintentionally, subject employees to harassment by their co-workers. A potential claim for harassment may also stem from an employee wondering why they were tested when they have no symptoms or had similar symptoms to someone else.
There should be a policy that provides guidance to avoid testing discrimination in the workplace. Sidley provides an example of testing discrimination when an employer tests employees who interact with customers rather than employees who are more isolated or at home. This testing does not represent a discrimination testing issue. On the other hand, when the employer tests low-income employees only, then this looks more like testing discrimination.
There are also other types of discrimination, which are unrelated to testing, when an employer reopens their business. An example is when an employer gradually asks the employees to return. It’s vital for an employer to have a good reason for why certain individuals are requested to come back to work while others are at home. The reasoning for such selection should not be based on a protected class as defined in discrimination laws. For example, if an employee only requests certain people of color to return to work or a specific gender, then this decision might pose a discrimination issue. It is also important for an employer to document the process of selection, in order to prove their decision is not discriminatory upon reopening their business.
Wage and hour
A question that pops into many employers’ and employees’ minds is whether employees should be compensated for the time spent getting tested for COVID-19, and who should bear the costs. The answer to this question would depend on the law of the employers’ state and jurisdiction.
Another issue facing small business owners with reopening and wage/hour concerns is the need to lower employees’ hours and wages when the business volume is dropping. If an employer is considering pay cuts, they should be aware of any notice requirements to the employee before implementing such a decision. As some state laws require a 30-day notice, other states require a specific form of notification. Also, there might be a contract issue in lowering the wage, which may justify the employee canceling his employment contract without any legal issues. Squire Patton Boggs has more information on wage/hour regulations.
What are the consequences of not providing a safe environment?
OSHA requires employers to provide a safe environment. An employee may report such violations or even refuse to return to work if the workplace poses an imminent danger to their health. Such refusal must be reasonable and in good faith belief. Other criteria for an employee to refuse to return to work include the employer's lack of intention to fix the dangerous conditions. If the immediacy of the dangerous situation does not provide time to report such dangerous conditions, the worker does not have a reasonable alternative. When these criteria are met, an employee may refuse to work until the employer eliminates the danger.
What happens if an employee gets infected with COVID-19 when the employer reopens their business?
Generally, for an employee to recover under the Workers’ Compensation Act (“Workers’ Comp”), the injury must occur during the employee's course of employment and be specific to his work. Arnold & Porter LLP gives a good example that illustrates Workers’ Comp claims. If a lawyer contracted Coronavirus from his co-worker, this might not be a successful claim under Workers Comp because the injury was not specific to his work.
If employees are more prone to encounter Coronavirus due to their work, employers should make sure their workers’ compensation insurance coverage is adequate.
COVID-19 positive employees who got infected during work hours, but unrelated to their scope of employment, are not entitled to workers’ comp. However, they are not out of luck yet if their employer provides disability benefits.
Employers must be cautious in maintaining required and related COVID-19 documentations. Squire Patton Boggs provides a list of documentation to keep such as:
o Cleaning procedure logs and external contract records of cleaning visits.
o Dates of confirmed positive COVID-19 diagnoses.
o Temperature testing procedures and employer-initiated isolation.
o Track Employee count for the determination of FFCRA coverage and Paycheck Protection Program forgiveness under the CARES Act.
o FFCRA paid leave documentation, including the information necessary to apply for available tax credits for those benefits.
What can an employer do if an employee refuses to go back to work?
Under these uncertain times, employees might be afraid of returning to work. Through the end of July 2020, unemployment recipients will receive an additional $600 per week on top of their standard unemployment insurance through the CARES Act.
When an employee refuses to return to regular work hours and pay, an employer should evaluate the reasons for refusal, depending on individual circumstances. If it became apparent that such refusal is not reasonable, an employer must report an employee’s refusal to return to work to the Department of Labor. This would ultimately cut off the employment benefits. It is important to warn the employee of your intention as this might save you time, once an employee knows the risks of their action.
May the odds be in your favor as the movie “Hunger Games” says. I wish you the best of luck in reopening your small businesses. Planning, knowledge, and implementation of required safety policies are key to a successful return. For information on protecting the privacy of an infected employee upon the reopening of your business, while keeping other employees safe, please visit the Legalucy blog written by Shelby Matsumura.
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