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COVID-19: a Guide for Re-Opening

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COVID-19: a Guide for Re-Opening COVID-19: A Guide for Re-opening August 6, 2020 Agenda 1. Current Re-opening Status and Guidance 2. Risks Associated with Re-opening 3. Employees who Refuse to Return to Work 4. Best Practices for Re-opening 2 Thursday, August 6, 2020 Current Re-opening Status and Guidance 3 New York Forward (Re-opening) Plan • The Phase 1 and Phase 2 guidance contains requirements related to: 1. Physical distancing; 2. Protective equipment; 3. Hygiene and cleaning; 4. Communication; and 5. Screening of employees and visitors. • These requirements continue to apply 4 Thursday, August 6, 2020 Mandatory Guidance: Physical Distancing • Total number of occupants must be limited to no more than 50% maximum capacity • Maintain a distance of at least 6 feet amongst all individuals unless the “safety of the core activity” requires a shorter distance • If workers or visitors must come within 6 feet of one another, masks covering mouth and nose must be worn • Tight spaces (such as elevators or vehicles) may not be used by more than one person at a time unless face coverings are used ‒ If more than one person will be using a tight space, occupancy must be under 50% of the maximum • Shared workstations must be cleared and disinfected between users • Employers must reduce interpersonal contact and congregating 5 Thursday, August 6, 2020 Mandatory Guidance: Personal Protective Equipment • Provide acceptable face coverings at no cost to employees ‒ Acceptable face coverings include: cloth masks, surgical masks, face shields, etc. • Train workers how to put on, take off, and clean/discard PPE • Advise workers and visitors to wear face coverings in common areas and when social distancing cannot be maintained • Limit the sharing of objects such as tools, laptops, notebooks, phones, screens, and writing utensil ‒ Otherwise, require that workers wear gloves and perform and hygiene before and after use 6 Thursday, August 6, 2020 Mandatory Guidance: Hygiene and Cleaning • Regularly clean and disinfect the workplace using registered disinfectants in accordance with CDC and DOH guidance ‒ Arrange for more frequent cleaning of high-risk areas • Maintain a cleaning log that documents the date, time and scope of cleaning • Provide employees with cleaning supplies for commonly touched objects and surfaces • Workstations must be cleaned and disinfected between users • Prohibit shared food and beverages 7 Thursday, August 6, 2020 Mandatory Guidance: Communication • Post signage reminding people to adhere to proper hygiene, social distancing rules, appropriate use of PPE, and cleaning/disinfection protocols • Maintain a log of every person, including employees and visitors, who may have close contact with other individuals at the work site or area ‒ If a worker or visitor tests positive for COVID-19, the employer must immediately notify the state and local health departments and cooperate with contact tracing efforts, including notification of potential contacts, who had close contact with the individual, while maintaining confidentiality • Provide building managers with a list of essential visitors 8 Thursday, August 6, 2020 Mandatory Guidance: Screening of Employees and Visitors • Employers must implement mandatory daily health screening protocols • At a minimum, screening is required of employees and visitors using a questionnaire asking about: ‒ (1) COVID-19 symptoms in past 14 days, ‒ (2) Positive COVID-19 test in past 14 days, and/or ‒ (3) Close contact with confirmed or suspected COVID-19 case in past 14 days • Employers must review responses daily and retain a record of this review • Employers must identify a contact person for individuals to notify if answers to any questions change 9 Thursday, August 6, 2020 Mandatory Guidance: Screening of Employees and Visitors (cont’d) • Daily temperature checks may also be conducted • Immediately notify the health department of any positive case • A 14-day quarantine is generally required if an employee tests positive, has COVID-19 symptoms, or has had close contact with someone with COVID-19 ‒ Cleaning/disinfecting of certain areas is also required • Employers must coordinate with building managers to facilitate screening ‒ Tenants are responsible for screening their own employees and visitors, unless Responsible Parties and building management have agreed to alternate arrangement to ensure screening is in effect 10 Thursday, August 6, 2020 Risks of Re-opening 11 Risks of Re-opening If you reopen too soon or fail to socially distance, you could be punished with: • Fines of $1000 or more • Citations • License suspensions • Business closures • Summons to appear in court • Lawsuits • Arrest Thursday, August 6, 2020 12 COVID-19 Wrongful Death Suit: Evans v. Walmart • First known COVID-19 wrongful death suit - filed in Illinois • Decedent contracted COVID-19 while working at a Walmart store ‒ Another employee who worked at the store died of COVID-19 shortly after the decedent • Complaint alleges: ‒ Walmart failed to implement safety measures recommended by CDC/OSHA ‒ Management did not clean and sterilize the store, provide employees with PPE, or implement social distancing ‒ Walmart did not bar employees with symptoms of COVID-19 ‒ Walmart did not warn employees that other workers had COVID-19 13 Thursday, August 6, 2020 COVID-19 Wrongful Death and Workers’ Compensation Claims • When an employee asserts he/she has been harmed as a result of work, exclusive remedy is usually workers’ compensation ‒ The only exception to this absolute bar is if the employer acted with the desire to bring about the specific consequence • Issues of causation arise in wrongful death and workers’ compensation cases ‒ Is COVID-19 the reasonable consequence of employer’s conduct • States have passed legislation on both sides of the fence ‒ CA: Rebuttable presumption in workers’ compensation claims, presuming that employees who are diagnosed with COVID-19 acquired the illness at work ‒ Executive Order expired July 5th and has yet to be extended ‒ Other states have passed narrower legislation that protects only first responders and/or those who work in environments where the hazard of contracting such diseases by an employee is inherent in the employment ‒ Some states have begun to draft and pass bills to shield employers from wrongful death suits/civil liability more generally 14 Thursday, August 6, 2020 OSHA General Duty Clause Employers must furnish “a place of employment . free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 15 Coronavirus-Related Whistleblower Claims May 6, 2020 COVID-19 OSHA Citation: Winder Nursing Inc. • Nursing home in Georgia received first OSHA citation related to COVID-19 on May 18, 2020 • Citation alleges six nursing home employees were hospitalized as a result of COVID- 19 • Alleged COVID-19 was contracted while at work and the nursing home failed to report the hospitalizations to OSHA within the statutorily mandated time period • The citation alleges the employees were hospitalized around April 19, but the nursing home did not report the hospitalization to OSHA until May 5 • OSHA has proposed a $6,500 fine for the alleged violation and classified the violation as “other than serious” • Ohio nursing home also received a citation on July 21, 2020 for failing to fully implement an appropriate respiratory protection program 16 Thursday, August 6, 2020 Whistleblower/Retaliation Claims on the Rise • Reports of employees alleging retaliation for reporting lack of safety measures and personal protective equipment (“PPE”) ‒ Health care workers ‒ Warehouse employees • Thousands of OSHA complaints regarding lack of COVID-19 protections • Thousands of Whistleblower complaints 17 Thursday, August 6, 2020 COVID-19 Whistleblower Claims • Hinich v. Norwood Crossing, Illinois (May 20, 2020) ‒ Assistant nursing director allegedly fired one day after complaining at safety meeting about facial mask fit • Bland v. Visiting Nurse Ass. of Greater Philadelphia, Pa. (May 27, 2020) ‒ Hospice allegedly fired staff after they filed with OSHA about lack of PPE and COVID-19 testing • Lin v. CGIT Systems Inc., Massachusetts (June 3, 2020) ‒ Engineer who lived with 81-year-old mother allegedly fired after requesting to work from home due to concern about passing disease to mother 18 Thursday, August 6, 2020 Violation of FFCRA: Mackie v. Coconut Joe’s • Plaintiff brought suit alleging that his employer violated Families First Coronavirus Response Act when he was terminated after seeking medical treatment for COVID- 19 symptoms • Plaintiff allegedly informed his employer of why he was leaving work • Employer nevertheless terminated plaintiff for leaving work • The FFCRA states an employee is entitled to paid sick time to the extent that the employee is unable to work due to experiencing symptoms of COVID-19 and seeking a medical diagnosis • The FFCRA states that it is unlawful for any employer to discharge, discipline, or in any other manner discriminate against any employee who takes leave in accordance with the Act • As a reminder, the FFCRA applies only to employees with fewer than 500 employees 19 Thursday, August 6, 2020 Violation of CARES Act: Professional Staff Congress/CUNY v. City University of New York • Professors alleged that the City University of New York violated its obligations under the Coronavirus Aid, Relief and Economic Security Act by laying off thousands of adjunct faculty and staff within weeks of being awarded $251 million in relief money • CUNY was required to the greatest extent
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