Member Article

As more employers re-open or are in the process of re-opening for business, they are following the current guidance for preventing the spread of coronavirus infection in the workplace by, among others, ensuring good hygiene practices, requiring social distancing, and screening employees for the COVID-19 illness. While implementing these safe workplace practices, employers should consider some helpful strategies to avoid claims down the road alleging that they failed to provide a safe workplace.

Significantly, during the current pandemic, thousands of coronavirus-related complaints have been filed with OSHA just during the period when only essential businesses were allowed to operate. With numerous employees returning to work now in non-essential businesses, it is expected that OSHA will be bombarded with additional complaints where employees allege that the safety controls being used by their employers are inadequate to protect them from COVID-19 exposure.

Moreover, some employees or their estates may attempt to by-pass the workers’ compensation exclusive remedy scheme and turn to litigation claiming that a COVID-19 exposure was due to an employer’s willful/gross negligence in failing to provide a safe workplace.

In order to navigate both potential OSHA proceedings and the threat of civil lawsuits, employers may find the following checklist helpful to review before employees return to the workplace. Of course, every workplace is different and specific measures will depend on the variables unique to each employer. Accordingly, employers should work in consultation with legal counsel on the best approach for their operations. The items discussed below are in addition to those recommended in our first checklist for returning to work, which addressed safety and other employment issues.

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