The Massachusetts-based Pioneer Institute - a well-respected public policy research body - has issued a "Checklist for Employers" preparing to re-open their facilities. The comprehensive checklist states that:
"While it is impossible to fully eliminate all risks associated with reopening in the COVID-19 setting, an employer may be able to significantly mitigate and reduce risks, such as workplace hazards and employment issues, by following some or all of the recommendations" set forth in the Checklist.
Citing to specific OSHA and CDC Guidance for maintaining a safe and healthy work environment, the Checklist recommends that employers prepare a comprehensive "preparedness and response plan" for the COVID-19 pandemic. The OSHA Guidance classifies four distinct worker facilities, healthcare, postmortem care, laboratories, and non-healthcare facilities. The Guidance outlines disinfectant and cleaning procedures for each one of these workplaces and also recommends that employers develop policies for worker protection and training.
The CDC Guidance recommends that employers prepare workplaces for a COVID-19 outbreak, and that they develop mitigation strategies to address such an outbreak.
The Pioneer Institute's Checklist contains a number of recommendations for employer. It recommends that employers prepare to address an employee's likely loss of unemployment benefits upon return to work, and points out that employers may be required under federal law to engage in the applicable "reasonable accommodation analysis" to avoid potential discrimination claims. The Checklist refers employers to the federal Equal Employment Opportunity Commission's website. That website provides comprehensive Questions and Answers regarding what an employer may or may not do during a pandemic such as COVID-19 in order to protect itself, while also not violating federal anti-discrimination laws. The Checklist also reiterates the EEOC recommendation that employers test employees before they enter the worksite. Employers may do so in light of the pandemic without running afoul of the American with Disabilities Act.
Employers should keep in mind that testing of employees carries substantial legal risks. For instance, if an employer does not perform the now-allowed testing of employees before they enter the workplace, and an infected employee enters and infects other employees, those other employees may have a cause of action against the employer. If a test in administered by the employer and the result is incorrect, i.e., fails to detect an existing infection, the employer again may face substantial legal liability. These potential risks for employers are currently recognized, and efforts are underway to have the Massachusetts legislature address them by limiting or eliminating any employer legal liability in such instances.
The Checklist also offers several "Operations" suggestions including, among others, the creation of an "emergency response team" to assess compliance issues. Another recommendation is that employers look to develop, where applicable, "broader supply chains, and redundancies." It also suggests that employers "communicate internally with employees and externally with customers about its plans and capabilities."
Finally, the Checklist also recommends that employers "analyze whether any contracts have been breached due to the emergency and analyze insurance coverage." Corporate governance documents should also be revised to allow for remote meeting and voting, under the circumstances.
Click here to access the Pioneer Institute's "Checklist for Employers."
Originally published May 4, 2020
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