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INSIGHT: Coronavirus Raises OSHA Safety, Union Issues for White Collar Employers

March 10, 2020, 8:01 AM

It is clear that the coronavirus (COVID-19) is a global health issue that will have a lasting effect in the weeks and months to come. Already, supply chains and production lines are being severely disrupted, travel bans have been implemented, and public and private events have been canceled. As testing methodologies improve, the number of people identified as having the coronavirus will continue to increase.

Given these circumstances, employers must do more than simply monitor the Centers for Disease Control and Prevention’s website, limit overseas travel, cancel unnecessary employee meetings, and hand out bottles of hand sanitizer. Employers must be proactive and develop new health and safety plans to weather this crisis while maintaining business continuity, workforce management, and litigation avoidance.

If COVID-19 continues to spread, companies may soon face a future that includes:

  • a legal duty to prevent or mitigate the spread of the coronavirus and other infectious diseases;
  • increased worker absenteeism due to illness, mandatory quarantines, the need to care for others, or to provide child care due to school closures;
  • the burdens of having to pay and accommodate absent employees;
  • increased demands by employees to ensure workplace safety from contagious diseases;
  • the burdens of implementing disinfection routines;
  • the need to assess employees exhibiting flu-like symptoms;
  • self-imposed or government-ordered closure; and
  • the need to reduce workforces in the face of lower economic activity.

Of particular interest to employers navigating the coronavirus outbreak should be the applicability of OSHA requirements, as well as the pandemic’s impact on labor relations.

OSHA and Workplace Safety

Whether initiated by management, demanded by employees, or enforced by government regulation, there will soon be additional needs and requirements for increased workplace safety from health risks. That being said, OSHA regulations pertaining to workplace safety may become relevant to a broader range of non-industrial workplaces.

The General Duty Clause, 29 U.S.C. § 654(a)(1), of the Federal Occupational Safety Act of 1970 requires employers to furnish each worker with a “place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Coronavirus certainly qualifies as a “recognized hazard.”

While many employers in the health care, manufacturing, or construction industries are accustomed to working with OSHA standards, most white-collar employers are not because their workplaces are generally free of the hazards that OSHA targets. This will soon change and attention must be paid to the mandate of the General Duty Clause.

It is telling that the homepage of OSHA’s website (https://www.osha.gov/) is now devoted to the coronavirus. While there is no specific OSHA standard for coronavirus, there are standards, aside from the General Duty Clause, which may soon apply and require employers to provide certain protective equipment or rearrange the workplace.

OSHA’s personal protective equipment standards (in General Industry, 29 CFR 1910 Subpart I) require using gloves, eye and face protection, and respiratory protection in certain circumstances; for instance: When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the respiratory protection standard (29 CFR 1910.134).

Should a workforce become exposed to coronavirus, or if symptomatic employees are discovered, the foregoing provision may become applicable and the distribution of face masks and workplace disinfectant programs may be required, depending on what the CDC determines to be “best practices” for coronavirus mitigation.

Union Management Relations

Whatever the parties to a collective bargaining agreement may feel about each other, the coronavirus will require labor and management to work together to help bargaining unit members affected by the virus and to ensure business continuity.

Topics management and unions will have to confront will include, among other things:

  • paid time off for testing;
  • periodic mandatory testing;
  • payment for testing;
  • longer or additional shifts for those able to work;
  • relaxation of the prohibition against cross-classification work or management preforming bargaining unit work;
  • relaxation of attendance and leave rules;
  • a program of salary continuation at a regular or reduced rate for employees who are quarantined or absent from work because they need to care for a sick relative or provide childcare in the event of school closures;
  • the implementation of support programs for employees who are ill or quarantined; and
  • gaining alignment on how to address workplace safety concerns.

Another topic is how to assess and deal with members of the bargaining unit who, out of fear for their safety, refuse to report for work, or won’t or can’t adapt to new schedules and workloads.

Furthermore, plans and procedures must be put in place for the worst case scenario where a plant or facility is forced to shut down either for cleaning or where the workforce is placed on 14-day quarantine.

Balancing Safety and Business Continuity

The coronavirus presents unprecedented challenges for employers and employees. Each employer must find a balance, specific to its workplace, between employee safety and business continuity. Clear and sensitive human resources policies will have to be developed that reflect this balance.

Employers who clearly communicate enhanced safety protocols and rational policies via a trained and informed management team are in the best position to maintain normal business operations and keep employee loyalty and morale high in these evolving, turbulent times.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Richard Reice is a partner at Michelman & Robinson LLP, a national law firm with offices in Los Angeles, Orange County (Calif.), San Francisco, Chicago, and New York City. He is a sought after employment lawyer who represents management across multiple business sectors.

Special thanks to Alex Barnett-Howell for his assistance in preparing this article.

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