Companies around the country are continuing to assess the operating status of their businesses as the COVID-19 crisis evolves and changes on a daily basis. Amidst the flurry of state Shelter-in-Place (SIP) orders over the past week, industrial enterprises across a wide range of sectors – chemicals, energy, mining, agriculture, pharmaceuticals and steel - along with manufacturers providing equipment and supplies to these industries, have been positioning themselves as ”essential businesses” required to keep their production engines churning. In states currently unburdened by these SIP orders, a host of considerations are being weighed as industry decides whether to continue operations or temporarily idle plants. For the large swath of Industrial America that has kept its doors open, operating during the COVID-19 crisis is not, however, “business as usual.” Companies requiring their employees to continue to report for work must ensure that appropriate measures are in place to protect these workforces from the health and safety risks posed by the COVID-19 virus.

Protecting workers from COVID-19 risks. Companies operating their businesses during the COVID-19 crisis must be able to document that they have taken appropriate precautions to protect the health and safety of their workers. In the first instance, this will require diligence in adhering to all relevant company health and safety policies and procedures and previously-issued CDC guidelines for protecting individuals from the COVID-19 virus. The newly-issued state SIP orders also contain some generalized guidance on what is expected of essential businesses to protect employees from the COVID-19 virus. These protections include implementing “infection control precautions,” such as social distancing and regular hand sanitation, as well as restricting continued facility operations to the minimum number of workers required to sustain ongoing production needs.

Guidance from OSHA. Earlier this month, the Occupational Safety and Health Administration (OSHA) issued its own “Guidance on Preparing Workplaces for COVID-19” (the OSHA Guide) offering fairly detailed advice on assessing and addressing the risks posed by the virus in continuing operations. The OSHA Guide makes clear that employers are expected to assess COVID-19 risks to their workers on a “worksite” and “job tasks” basis. Adequate controls will then need to be implemented consistent with OSHA’s “hierarchy of controls” for at-risk employees – from engineering and administrative controls to safe work practices and employee personal protective equipment (PPE).

The OSHA Guide acknowledges that, for most manufacturing companies, the risk from the COVID-19 virus to its front line workforce is generally considered by OSHA as “low exposure.” Based on this classification, the types of administrative controls and safe work practices required to protect facility employees will generally include steps to minimize close contact between employees through social distancing and, where necessary and practical, adjustments to shifts and work days to minimize the number of employees on the plant floor at any given time. Training on risk factors and protective behaviors to avoid exposure and good hygiene may also be advisable. Except in exceptional circumstances, the OSHA Guide does not suggest that additional PPE will be required for workers in low-exposure manufacturing settings.

The OSHA Guide recommends that employers develop an infectious disease response plan and implement a process for assessing and implementing these workplace controls, if such a plan is not already in place. Regardless of whether a formal response plan is prepared, companies should document a reasonable assessment and review of their facilities and work tasks to ensure that worker risks are known and understood and that responsible actions are taken to protect at-risk employees. The documentation of these thorough workplace assessments and protective actions will also be valuable in defending against future claims by employees alleging failures to adequately protect those who continue to work during this crisis.

OSHA has also separately clarified that illness from exposure to the COVID-19 virus can be a recordable illness with the same applicable requirements as other workplace injuries if three conditions are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related, as defined by 29 CFR 1904.5; and (3) the case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first-aid, days away from work). If these cases are work-related, then most COVID-19 illnesses will be reportable in the normal course on a company's OSHA 300 log. However, companies should keep in mind that there are more immediate reporting requirements if there is a work-related in-patient hospitalization (must be reported within 24 hours) or a work fatality (must be reported within 8 hours).

Potential worker claims during continued business operations. The importance of taking a thorough approach to assessing and addressing workplace risks during the COVID-19 crisis and documenting decisionmaking and response actions to protect employees cannot be overstated. As potential health risks persist, employees are increasingly voicing opposition to continued work obligations during the crisis, with high-profile, organized protests being carried out by workers at manufacturing facilities, distribution centers and other businesses around the country. Some companies are also seeing a demonstrable increase in individual workplace complaints to OSHA.

In another sign of what may be coming, on March 24th, the Alaska State Employees Association, Local 52, (“ASEA”), a union representing more than 8,000 government employees, filed what may be the first COVID-19-related lawsuit against the State of Alaska alleging the State’s “failure to protect ASEA members from the health and safety risks posed by the novel Coronavirus, an infectious disease pandemic.” Among the allegations in ASEA’s complaint include the failure of the State to abide by its own health and safety policies and to take other measures to protect employees from the spread of the virus. As enumerated in the complaint, these alleged shortcomings included denying employees the opportunity to work from home, failing to modify shift schedules and workspaces to ensure social distancing, requiring employees to work in confined spaces in groups larger than 10, failing to provide public-facing employees with adequate PPE, and failing to take additional steps to clean work spaces.

We expect more litigation in the weeks and months ahead against employees and unions across a wide range of businesses, which will shine a bright light on the actions of employers to protect workers in these chaotic times.

How we can help. Baker McKenzie’s Environmental and Labor & Employment Groups continue to advise clients on the environmental and health and safety risks to their operations implicated by the COVID-19 crisis. We remain available to answer any questions you might have and to provide legal support and counsel as you navigate these ongoing issues and challenges. Please reach out to our COVID-19 contacts should you need further assistance. Baker McKenzie understands that these times are challenging for all our clients and we want to assure you we are here to assist.

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