By Julio R. Olaya, Jr.
Welcome back after last month’s snowstorm. While last month’s weather events temporarily changed employers’ focus, we cannot understate the importance of continuing to follow COVID-19 guidance in the workplace particularly with the recent announcement by Governor Hutchinson.
The general trend of infections and active cases in Arkansas is headed in the right direction, but employers should continue to remain vigilant to limit risk for their employees and client. Our newsletter this month focuses on updates to COVID-related mandates and guidance at the State and Federal levels.
State Reduces Most COVID-Related Mandates to Guidance
On February 26, 2021, Governor Hutchinson announced that effective immediately all directives from the Arkansas Department of Health, other than the mask mandate, have become guidance. Guidance does not have the force of law or carry penalties. Instead, they are considered recommendations derived from medical consensus. While failure to follow the guidance will not be grounds for regulatory liability, it may be evidence of willful, reckless, or intentional misconduct that could result in the loss of tort immunity related to COVID-19 for businesses.
Under Executive Order 20-33, businesses are presumed to have immunity from COVID-19 related tort liability if they substantially comply with health and safety guidelines issued by the Governor or the Secretary of the Department of Health.
OSHA Issues New COVID-Related Guidance
At the federal level, on January 29, 2021, OSHA published guidance for employers and employees on how to identify the risks of being exposed to and contracting COVID-19 as well as appropriate control measures to implement to minimize that risk. This guidance does not apply to healthcare or emergency response settings. This guidance is not a standard or regulation and as such it does not create new legal obligations. Nevertheless, adhering to administrative guidance, even if not binding, can go a long way for any employer facing potential issues with OSHA. This is because OSHA requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. In theory, following all OSHA guidance, even if not mandatory, minimizes the possibility that your workplace may be found to violate the general duty clause.
COVID-19 Prevention Program
The guidance suggests that employers need to implement a COVID-19 prevention program to combat the spread of COVID-19. It recommends sixteen actions to support a prevention program with the assignment of a workplace coordinator being its first recommendation. Other actions include:
- Identifying where and how workers may be exposed to the virus at work
- Identification of combination of measures that will limit the spread of the virus in the workplace such as sending symptomatic workers home, installing barriers, physical distancing, among many others
- Establishing a system of communication between employer and workers to facilitate reports without fear of reprisal
- Generally, educate and train workers on COVID-19 policies and procedures in ways they can understand
- Perform enhanced cleaning and disinfection
For the complete list of recommended steps, click here.
Eliminating COVID-19 from the Workplace
The guidance also discusses separating and sending home infected or potentially infected people from the workplace. It goes into detail on the various ways a worker may isolate before returning to work and acknowledges that while most cases involve a symptom-based strategy (whether or not an employee is experiencing symptoms on a certain day), others may require a COVID-19 test-based strategy. The guidance lays out the various CDC guidelines on employees returning to work. Importantly, an employer should not use an antibody test to determine whether a worker may return to work. In the event you are trying to determine when it is safe for an employee to return to the workplace, we recommend you review the complete OSHA guidance on this topic.
COVID-19 Risk Reduction at the Workplace
The guidance concludes with various suggestions designed to minimize risks in the workplace:
- Implement physical distancing in all communal work areas
- Install barriers where physical distancing cannot be maintained
- Suppress the spread of the hazard using face coverings
- Improve ventilation
- Use PPE when necessary
- Provide supplies necessary for good hygiene practices
- Perform routine cleaning and disinfection
While this guidance is non-binding, it is a great resource for employers to use as they evaluate their own COVID-19 policies and procedures. As to Arkansas’ recently downgraded guidance, employers need to be wary of any changes to their business that may be considered a deviation from the guidance as it may be grounds for loss of tort immunity. As with any legal situation, consult with an attorney before making a change as everyone’s situation is unique. Read the entirety of the new OSHA guidance.
Julio R. Olaya Jr., an associate at the firm, focuses his practice on litigation matters related to medical malpractice and labor and employment. He works to defend healthcare providers in medical malpractice litigation. Julio also uses his experience as a student attorney for Boston University School of Law Immigrants’ Rights Program to provide guidance and representation in handling immigration and compliance issues.
Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.