Accommodating essential staff through COVID-19

Accommodating essential staff during the COVID-19 national emergency is your most pressing challenge now, and in the weeks to come. If you’re lucky enough to be open doing business, your challenges include keeping workers happy and healthy and customers safe. There’s no doubt many of your employees are scared. The Occupational Safety and Health Administration (OSHA) has reportedly already received thousands of employee complaints. They come from hospitals, construction companies, grocery and drug stores, and shipping and delivery services. Charges include a lack of gloves and masks, and being told to work too close to other employees and customers.

Mask, gloves and safety protocols must be provided. Hazard pay may be necessary or soon mandated. Disabled workers need extra protection or may need to be sent home. Employers pushed into new roles as delivery services must adapt and learn the rules on the fly. It’s a huge challenge, but there is help available.

What you need to do is industry, state, and position-specific.

Federal guidance and state shut-down orders

President Trump declared a national emergency on March 13, 2020. Three days later, the administration issued coronavirus guidelines for the country valid until March 30. While not an order, the suggestions included limiting gatherings to fewer than 10 people, avoiding discretionary travel eating and drinking in bars, restaurants, and public food courts. They were then extended through April 30. The guidelines are meant to encourage social distancing in order to slow the spread of the virus that causes COVID-19.

At the federal level, numerous agencies are busy issuing guidance, too. For example, OSHA has just issued guidance for employers who provide delivery services. Earlier, OSHA provided guidance to employers that employ health care workers.

Meanwhile, states began closing schools, non-essential businesses and ordering individuals to remain home. In most states, only essential workers are expected to go to work. Others are supposed to stay home. Each state has set slightly different rules about who is essential. And as time has gone by, some states have tightened restrictions to include mandatory wearing of face coverings. For example, On April 15, Pennsylvania ordered all open businesses to provide and mandate masks for employees. Customers will be refused entry if they, too, do not wear masks. New York State issued a similar rule.

Plus, the White House announced on April 16 that when individual states lift restrictions is up to governors. They will have to come up with employer guidance going forward, with the federal government taking an advisory role.

The bottom line: Employers will have different rules depending on where their operations are.

Managing first responders and medical providers

Both first responders and medical providers like doctors, nurses and aides work for essential businesses. Many hospitals and medical practices have curtailed routine visits and cancelled elective surgeries for the time being. Instead, they have refocused on preparation for a surge of COVID-19 cases and repurposing facilities for the sick. And first responders, whether employed by hospitals, ambulance services or fire and police departments, must transport sick patients.

Protective gear

Employees who likely will come into direct contact with COVID-19 patients must be provided with adequate safety gear. On April 9, the Centers for Disease Control and Prevention (CDC) reported that 9,200 health care workers have tested positive. Of those, 27 have died. That news prompted widespread employee complaints about missing protective gear and dire working conditions.

On April 13, OSHA issued an “Interim Enforcement Plan” for COVID-19. The plan includes sample letters that an OSHA inspector may send to employers. Employers may be cited over an ill first responder or a shortage of personal protective equipment (PPE). The letters will ask employers to respond and it includes specific steps those employers should take. Employers that receive the letter must respond and explain how they have fixed the problem outlined.

Employee notification

There are no uniform standards for when employees must be notified of a COVID-19 workplace infection. Nor are there for disclosing how many COVID-19 patients a medical facility is treating. The information may be barred from disclosure under various federal laws, including HIPAA, the FMLA, and the ADA. However, this lack of disclosure is widely panned by first responders and medical providers. They argue the information is crucial to their health and safety. Employers may want to disclose the information in a way that does not include personally identifiable data. For example, you could notify nursing home staff who have come into contact with patients that they may have been exposed. (Of course, those providing direct care already know.)

Hazard pay for essential staff

Essential staff still coming to work are making their voices heard. Some have called for sick-offs. Others have reported their trouble getting masks and gloves to the media. Still, others have filed complaints. Lawsuits have also started cropping up.

Some employers have responded with ads thanking their essential staff for the work they do. Others have decided that the best approach is to raise wages in the hope that a bigger paycheck will motivate. Some are also advertising job openings, promising good benefits and higher pay than before the pandemic. A select few employers have also taken to discipling workers seen as organizing protests – a dubiously legal move.

For first responders and medical providers, it hasn’t been as simple as being offered more pay. That’s partly because as their employers geared up for COVID-19 cases, they canceled or delayed other appointments and surgeries. That’s hit their bottom line. But Congress may be stepping in.

In Congress, a hazard pay bill has been introduced. Senate Minority Leader Chuck Schumer says the “Heroes Fund” would add a hazard payment of $13 per hour for first responders and frontline health care workers. The plan would be limited to a total of $25,000 per worker. In addition, the bill would include a payment of $15,000 to those hired during the COVID-19 emergency. The funds would all come from the federal government and not the employer.

Left out of the proposal is hazard pay for many other workers. Grocery and drug clerks, warehouse workers, delivery drivers – including many newly created local direct delivery jobs – wouldn’t qualify. If this describes your workforce, you will have to consider bumping their pay up if necessary and increased business warrants.

Follow CDC and OSHA guidance for essential staff

Your first step in accommodating your essential staff must be to follow CDC and OSHA guidance, plus any state rules.

The CDC suggests employers take these steps:

  • Actively encourage sick employees to stay home;
  • Accommodate employees through social distancing or telework;
  • Emphasize respiratory etiquette and hand hygiene by all employees;
  • Perform routine environmental cleaning;
  • Check government websites (CDC, State Department) for any travel advisories; and
  • Plan for infectious disease outbreaks in the workplace.

In addition, federal distancing guidelines and suggestions to wear masks should be followed. Plus, follow state rules, too. You may also want to discuss safety protocols with your counsel. He or she can best apprise you of any legal risk of not following guidelines or state requirements. Already, legal experts think there will be litigation over the failure to prevent employee and customer infections. Lawsuits have already been filed against several nursing homes over infections.

Package delivery guidance

OSHA’s package delivery services guidance, which applies to all businesses making deliveries, include these additional recommendations:

  • Flexible, staggered work hours;
  • Social distancing of six feet between co-workers;
  • Minimize interaction between drivers and customers by leaving deliveries at loading docks, doorsteps, or other locations that do not require person-to-person exposures;
  • If workers do not have access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol. Provide tissues, as well as disinfectants and disposable towels workers can use to clean work surfaces, including vehicle interiors.
  • Permit workers to wear masks over their nose and mouth;
  • Discourage workers from using other workers’ tools and equipment; and
  • Use Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus.

OSHA mask guidance

OSHA has also issued guidance for the use and reuse of medical masks for first responders and medical providers – the N95s. Limited reuse and the use past their manufacturer stated shelf-life is permitted. For example, OSHA will allow the same employee to extend the use of or reuse an N95 “as long as the respirator maintains its structural and functional integrity and the filter material is not physically damaged, soiled, or contaminated.”

Retail worker guidance

OSHA also has guidance for retail operations like pharmacies, supermarkets and big box stores. In addition to the CDC guidance above, these employers should:

  • Provide a place to wash hands or alcohol-based hand rubs containing at least 60% alcohol;
  • Maintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces and equipment with Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus;
  • Maintaining six feet between co-workers and customers, where possible. Mark lines with floor tape. Open only every other cash register, temporarily moving workstations, and install plexiglass partitions;
  • Use a drive-through window or curbside pick-up;
  • Provide workers and customers with tissues and trash receptacles;
  • Train workers in proper hygiene practices; and
  • Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.

Reporting workplace COVID-19

Employers are required to report workplace injuries and accidents under OSHA regulations. The agency has now issued a memo outlining when and if employers must also report COVID-19 related incidents. Work-related incidents are reportable if they result in death or something as minor as time off work. Because any COVID-19 necessarily involves time off work to isolate and treat, every case is reportable if it is work-related.

OSHA says employers in the healthcare industry, emergency response organizations and correctional institutions must determine whether the infection is work-related. All other employers only need to do so if there is objective evidence a COVID-19 case is work-related:

  • It’s clear the illness may be part of a cluster of employees who work closely together; or
  • It’s likely because the infected employee describes circumstances that indicate it happened at work.

Final note: It’s clear that COVID-19 and attendant restrictions are here for the near future. Keeping workers safe must be a priority for employers who are currently open. It’s also crucial for employers to design an opening plan for when their state gives the green light. Expect much more guidance from governors, mayors and federal officials in the coming weeks and months.