Returning to the Workplace: Legal Obligations and Risks

Opening June 9, 2020 By: Julia E. Judish

Returning to the office may be a welcome change for employers and employees growing weary of remote work. But employers must comply with legal requirements for keeping their staff safe onsite—some of which they may never have had to concern themselves with before.

The novel coronavirus pandemic has presented a public health emergency unlike any most Americans have seen in their lifetimes—and has also upended the operations of most associations and other businesses in the U.S. Following state and local stay-at-home orders, associations have temporarily changed their operations to convert to a remote workforce and, in some cases, have had to furlough or lay off employees.

As jurisdictions begin a phased-in lifting of stay-at-home orders, many associations are considering a return to onsite work. Before permitting or requiring employees to return to the workplace, however, association executives must navigate and ensure compliance with a host of new legal requirements. They also must consider how to balance the benefits of returning to onsite work with the legal, public health, and morale risks.

OSHA Obligations, Both Old and New

The federal Occupational Safety and Health Act includes a general duty on the part of all employers to provide a “place of employment … free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Although this is a long-standing legal requirement, the relatively unhazardous environment of most office-based workplaces has meant that many associations have never previously had cause to pay attention to this statute. COVID-19 has changed that.

The virus is a recognized hazard. According to the Centers for Disease Control and Prevention (CDC), the U.S. alone has tracked more than 1.9 million cases of COVID-19 infections, resulting more than 110,000 fatalities, as of the date of this article. Because the virus can be transmitted by asymptomatic and presymptomic carriers, it is impossible, given current levels of testing availability and reliability, for employers to ensure that they can identify whether employees pose a hazard to their coworkers. Under the statute’s requirements, however, employers must try, if they expect employees come to the workplace.

The Occupational Safety and Health Administration (OSHA), which enforces the statute, has instructed employers to assess the hazards to which their workers may be exposed (including COVID-19), evaluate exposure risk, and select, implement, and ensure that workers use controls to prevent exposure. Employers may require temperature screens and administer virus testing to employees before allowing them onsite—which the EEOC has confirmed is lawful for purposes of controlling infection during a pandemic.

In addition, OSHA guidance requires that employers keep employees who exhibit symptoms of COVID-19 away from the worksite, consistent with CDC guidance. The OSHA guidance document imposes detailed requirements for reducing the risk of workplace infections. The steps include:

  • development of policies, communication plans, and training protocols
  • implementing physical engineering controls, including installation of high-efficiency air filters, increasing ventilation, and installation of physical barriers to enforce distancing between employees
  • provision of personal protective equipment (PPE) to employees
  • instituting frequent sanitizing and cleaning practices.

On May 19, 2020, OSHA published a revised enforcement guidance which, in practical effect, now requires all associations to monitor any employee cases of COVID-19 and, in some circumstances, report those cases to OSHA if the employees have been onsite. OSHA regulations require all employers, regardless of industry, to report to OSHA any work-related illness or injury that results in an employee’s hospitalization or death. Although associations are already subject to this regulatory requirement, most would never previously have had cause to make a report to OSHA—except in unusual situations, as when, for example, an employee has suffered a serious fall at work.

The new revised enforcement guidance interprets how those regulations apply in a pandemic. Now all employers whose employees have returned to onsite work must pay attention to any employee reports of COVID-19 illnesses. The guidance requires employers to report to OSHA any “confirmed cases of COVID-19” (where the employee has tested positive for the virus) that result in hospitalization or death, if the employer determines that “it is more likely than not that exposure in the workplace played a causal role” in the employee contracting the virus.

Employers must engage in good-faith and reasonable inquiries to investigate how the employee contracted the virus, including by discussing it with the employee, asking about the employee’s activities outside of work, reviewing whether other workers in the employee’s vicinity have had COVID-19, and assessing whether the employee’s duties involve frequent contact with the public in a locality with ongoing community transmission. Although reporting a case to OSHA will not itself create liability for an association, OSHA is required to conduct a worksite investigation if it receives reports of two or more in-patient hospitalizations or of any fatality. Both failing to make a required report to OSHA and findings by OSHA of workplace health or safety violations can result in civil penalties.

Associations must monitor and ensure compliance with ever-evolving state and local executive orders that apply to their onsite operations. Some states and localities include highly specific requirements for workplaces that reopen to onsite work.

State and Local Executive Orders and CDC Guidance

Associations must also monitor and ensure compliance with ever-evolving state and local executive orders that apply to their onsite operations. Some states and localities include highly specific requirements for workplaces that reopen to onsite work. In some instances, they include prescriptive details about enforcement of social-distancing requirements, face coverings or PPE (sometimes at employer expense), and changes to workplace configurations, such as installation of barriers, closure of common areas, and spacing requirements between work stations.

These orders may incorporate CDC guidance, making the advisory guidance a mandatory standard. The CDC’s May 2020 Interim Guidance for Businesses and Employers and detailed Activities and Initiatives for reopening America both emphasize the importance of businesses communicating with local health departments in their planning. The reopening guidance calls for employers to:

  • protect employees at higher risk for severe illness by supporting and encouraging telework
  • scale up only if businesses can “ensure” strict social distancing, proper cleaning and disinfecting requirements, and protection of workers and customers
  • encourage telework “for as many employees as possible”
  • train all managers and staff in required safety protocols
  • ·notify local health officials and staff immediately of a possible employee COVID-19 case while maintaining confidentiality consistent with the Americans with Disabilities Act and other applicable privacy laws
  • check local health department notices daily about transmission in the area and adjust operations accordingly
  • consider closing for a few days or longer if there is a case of COVID-19 in the workplace or if cases increase in the local area.

Practical Challenges and a Steep Learning Curve

This brief synopsis presents only a partial snapshot of the applicable legal requirements and guidance that associations should consider before returning to onsite work. Association executives would be prudent to consult with legal counsel for advice on whether, when, and how to resume office-based operations.

Employee morale should also factor into the decision. Many employees may be worried about their own health or the safety of household members if either onsite work or public transit commutes increase their exposure risk. For associations able to support their missions and their members with a teleworking workforce, continuing those arrangements for a longer period may reduce compliance burdens, minimize potential legal risk, and best protect and support association employees. For associations that must return to onsite work, a careful and legally compliant approach is essential.

Julia E. Judish

Julia E. Judish is special counsel at Pillsbury Winthrop Shaw Pittman, LLP, in Washington, DC.