Identifying and Protecting the At-Risk Worker

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Businesses planning for COVID-19-related reopenings must deal with numerous employee and workplace risk factors, as well as regulatory guidance that seems to evolve on a weekly, if not daily, basis. The stakes are higher than ever, and employers have no choice but to get it right the first time.

Here are some ways to identify and protect the at-risk worker, as well as the general public and your own organization, while staying within legal and regulatory guidelines.

How It Can Cost You

The potential sources of liability are many. You can be sued by third parties who claim you caused their illness by exposing them to hazardous conditions. Employment attorneys are on the lookout for class action opportunities based on gross negligence.

Inconsistencies in providing workplace accommodations, disparate impacts associated with layoffs and cutbacks, failure to pay nonexempt employees for all remote work time, privacy violations associated with releases of personal medical information, and retaliation are all viable grounds for liability.

In many instances, an employee with a COVID-19 infection is going to be eligible for workers’ compensation. Even in the absence of proof of occupational exposure, there are a growing number of state-specific legal presumptions that, for workers in certain categories, COVID-19 arises from occupational exposure. Excepting only the small employer, the costs of these claims will be borne, one way or another, by the employer rather than the insurer.

What You Can Do

Until government agencies change their guidance, the following employer practices are permissible, provided they are appropriately administered:

  • Inquiring about symptoms of COVID-19
  • Measuring body temperature
  • Sending infected workers home and requiring medical documentation before they return
  • Requiring protective gear
  • Contact tracing
  • Not paying people who won’t work, including those expressing unspecific fears or because of a high-risk family member

If you learn an employee has contracted a COVID-19-related illness, have a confidential discussion about how the person might have contracted the illness, and review any activity, whether work-related or not, that might have caused an exposure to others in the workplace.

A determination that the event was work-related is going to make the case eligible for Occupational Safety and Health Administration (OSHA) recordability and compel you to take aggressive action to remediate the work environment.

Keep in mind that the guidance set forth by government agencies is a de facto minimum standard. Meeting the guidance may not be sufficient, but failure could be deemed gross negligence.

Though we don’t know all the rules of the game, there’s no replacement for determining how such guidance applies to your operations or for taking any additional steps necessary to ensure stakeholder safety.

What You Can’t Do

You can’t use COVID-19 as justification to terminate an employee without legal cause, conduct overly broad medical tests, or share confidential personal information, such as the name of an infected person, beyond parties with a legal need to know. Additionally, you can’t require antibody testing as a condition of returning people to the workplace.

You also can’t mingle medical data within a personnel file, fail to provide reasonable accommodations (noting that people at high risk may need special protections), disregard good-faith concerns about specific workplace dangers, or interfere with protected activity such as whistleblowing.

Finally, you can’t withhold employment opportunities simply because somebody is regarded to be at elevated risk unless the person poses a direct threat to himself or herself…

Source: HR Daily Advisor

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