Managing your business as the pandemic continues

Businesses thrive with flexibility and creativity, however, the past year created uncertainties heretofore unseen and unpredictable. As a result of a public health crisis, every successful business had to adapt and adjust to the “new normal” of planning, budgeting, staffing, and managing personnel. The private workforce today operates much differently than it did before the pandemic. And that is the case with the government, as well.

Following in the footsteps of other administrative agencies, OSHA (the Occupational Safety and Health Administration), has published guidance on how to deal with COVID-19 aims to inform both employers and employees on mitigation and prevention of the spread of the virus. OSHA recommends, not mandates, that employers implement a now well-memorialized, multi-step prevention program, enforce social distancing in all communal work areas, provide employees with at least one free face covering per day (and more if employees’ work could cause a mask to become wet or soiled), and require all workers, visitors, and patrons to wear a face covering while inside the workplace (unless they are actively dining). So, is this guidance important?

What do the OSHA guidelines mean to employers?

At a basic level, they’re helpful to consider in anticipating ways in which employees might sue and the theories they could raise in doing so. Assume an employee contracts COVID-19 at the workplace from another worker who was not wearing a face covering and was not encouraged by the employer to put one on. Assume, further, that the employee’s case of the virus is severe and she or he has to be admitted to a hospital, causing the employee to incur considerable medical costs that insurance will not cover. It is no stretch to anticipate that counsel for the employee seeking legal recourse will to look first at existing law to determine if there are grounds to file suit, then turn to regulatory guidance for support to expand or even develop a theory.

For example, a creative plaintiff could attempt to raise a negligence claim (which consists of an individual or entity’s failure to take reasonable care with respect to a duty owed to a person or class or people, and an injury or damage caused by that breach of duty) by comparing its employer’s behavior to what OSHA instructs and then arguing that the employer’s deviation from OSHA’s recommendations constitutes breach of the employer’s duty of care. While failing to follow regulatory guidelines does not currently serve as concrete evidence of breach, being diligent about how OSHA suggests employers should act could become important as the law evolves. And, of course, it makes good practical sense too.

But how could this “really” happen? A very real illustration is happening right now to Amazon. In February, Amazon was sued for an alleged failure to provide proper health and safety measures to its New York City warehouse employees. According to the complaint, Amazon allegedly failed to close or ventilate any part of its facilities after numerous employees tested positive for COVID-19, did not adequately disinfect the facilities, and did not provide its employees the time or opportunity to take personal safety precautions. Additionally, some employees were fired after allegedly making complaints about the company’s approach to COVID-19 safety. You can read more about the lawsuit here.

To avoid the legal and reputational costs of a lawsuit like the one Amazon faces, consider the following:

• If part of your current role involves Human Resources or Risk Management, requiring you to understand and minimize risks, pay attention to the guidelines. Adopting even one of them could be better than following none. While some require considerable leg work, like providing each employee multiple face coverings or even providing employees with vaccines, others are fairly simple to implement, like allowing employees to share anonymously their concerns about COVID-19-related hazards.
• Applying any of the guidelines in your work environment is a way to show understanding, concern, and respect for the individuals who keep your business going. One never knows if implementing one of these could keepa plaintiff from suing, or keep a union from filing a grievance on behalf of an employee, or even prompt an employee or group of them to refrain from taking a first step to contact a union for possible involvement in your workforce.
• OSHA provides a good summary of common sense reminders that you might want to share with your managers. The recommendations serve as a refresher as to how others are thinking about COVID-19 risks and how to mitigate them. Reviewing the guidance can help managers form an understanding of what they are already doing correctly, what they should be doing, and what they ought to avoid.
• If your goal is to minimize governmental involvement in your business, it is often a good decision to do what the government suggests, especially as a precaution. If an OSHA investigation materializes in the future pursuant to Section 5 of the OSH Act, having already made changes that are in accordance with what OSHA explicitly encourages could make life much easier.

All in all, these guidelines are just that—guidelines. Irrespective, and even though Section 5 of the OSH Act doesn’t provide a private right of action (meaning, the ability for an individual to sue for damages), implementing at least some of OSHA’s tips in the interest of predictability and mitigating risk could be wise. Is it better to be safe than sorry? With these guidelines, it’s still your call.