By Lee Allphin, Employer Advantage Founder and Chairman of the Board
With continued confusion and uncertainty in the era of COVID-19, employers find themselves under the gun. The Centers for Disease Control and Prevention (CDC) has established many critical guidelines to protect employees, but if these are misunderstood or mishandled, the employer could face legal risks.
The CDC is continuously changing guidance for employers. These guidelines are also “recommended,” and not mandates, allowing many businesses to pick and choose which guidelines they will put in place for their business. Many employers view the guidelines as confusing, complex, and impractical.
Employer Advantage is sharing important information we use to guide our clients during the Coronavirus pandemic. We are honing in on the CDC directives that recommend employers take four actions to protect workers from contracting COVID-19:
1) Self-isolating sick employees
2) Quarantining exposed employees
3) Screening employees for symptoms prior to work
4) Installing partitions to protect the public
Executing these directives can be complex. Some employers worry that doing so might be a hindrance to normal business operations, or outright impossible for their type of business. Further confusing matters is that many of these recommendations lack specific detail, which can lead to misinterpretation.
Unfortunately, ignoring or even misunderstanding the guidance puts employers and their employees at risk. Even though this CDC guidance is not a law or regulation, such guidelines can be looked at by OSHA and the courts as the legal standard which defines what actions an employer is obligated to take to protect its workers during this unprecedented time. In fact, the Assistant Secretary for the U.S. Department of Labor has already indicated that OSHA could rely upon the general duty clause, which the agency can enforce in the absence of a standard on point, to enforce the CDC’s guidelines for employers regarding COVID-19.
If an employer fails to follow a CDC guideline, it could receive a citation under OSHA’s general duty clause if classified as “a willful violation.”
RISKS TO AVOID
- Allowing COVID Exposed Employees to Work Too Early After A Negative Test: Employers falling under the CDC’s general business guidance (not critical infrastructure employers) should quarantine employees for 14 days since their last direct exposure to a confirmed or suspected COVID-19 case. “Exposure” is determined by the “6-15-48” rule: being within 6 feet of the infected person, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms, until the infected person is released from self-isolation. Critically, the 14-day quarantine period cannot be cut short by a negative test due to the lengthy incubation period of COVID-19.
- Miscalculating the Appropriate Quarantine Period for Those Exposed to an Infected Household Member: For a worker who has been exposed to an infected spouse or household member, the 14-day quarantine period does not begin until the last day the employee was directly exposed to the spouse or household member, prior to the infected person being released from self-isolation. Thus, if an employee is directly exposed to their spouse or household member on days one through 10, the quarantine period does not begin until day 10.
- Not Notifying Employees of a Confirmed COVID-19 Case in Your Workplace: According to numerous labor law firms, several lawsuits have already been filed with COVID-19-related claims. In a troubling trend, there is a prevalence of claims relating to the employer’s failure to notify employees of a confirmed case of COVID-19 in the workplace. Throughout the pandemic, being transparent with employees has been a critical tool in maintaining positive company morale. Failure to do this can lead to negative consequences, including not only lawsuits, but Occupational Safety and Health Administration (OSHA) complaints and employees refusing to work.
- Incorrectly Believing That Wearing Face Coverings Eliminates the 6-15-48 Rule: When analyzing whether an employee has been exposed to an infected co-worker, employers often do not understand the role of wearing face coverings to prevent the spread of the virus. Wearing masks is only to slow the spread of COVID-19; it does not utterly protect all parties. When directly exposed (6-15-48) to an infected person, even an employee who was wearing a mask should be quarantined for 14 days.
The ultimate impact of COVID-19 on American business culture, and society at large, has yet to be determined. The situation (and guidance) evolves each day as our understanding of the virus does. Keeping up with the continual flood of information can certainly be daunting. But it is essential that business owners make every effort to stay informed and enact the best practices set forth by the scientific community and our government’s regulating bodies.
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A New Path to HR Bliss – Trusted for more than 30 years, Employer Advantage frees you from the administrative and compliance burdens of having employees so you can focus on your business success. Versatile enough for companies of all sizes, our unique service combines comprehensive management of your employee administration and compliance with the latest software solutions, tailored to meet your individual needs and company culture. Our full-service management of HR, payroll, health and benefits, workplace safety, and more, enhances your profitability while reducing the costs and risks associated with employment law compliance. We provide your employees with top-notch assistance and benefits that help you increase productivity, save time and money, and attract and retain a talented workforce. And for small and mid-sized businesses, we bring you economy of scale with access to Fortune-500-level benefits, specialty assistance, and savings that would not be possible to attain on your own. Headquartered in the Midwest and serving more than 400 companies and 10,000 worksite employees throughout the country, Employer Advantage is an IRS-Certified Professional Employer Organization (PEO) (C-PEO). Experienced, certified, and trusted. www.EmployerAdvantage.com