As businesses around the world reopen and adapt to the new reality of the coronavirus pandemic, savvy managers and employers are already planning how to safely return employees to work in a post-COVID world. With companies reopening, there are many questions that need to be answered. This article was written to help managers, leaders, and employers better understand their legal responsibilities when it comes to health and safety in and out of the workplace.
OSHA and WFH employees
Above all else, employees have the right to work in a safe and healthy environment. The Occupational Safety and Health Administration (OSHA), an agency within the Department of Labor, is in charge of securing and preserving these protections.
At a time when remote working has become more popular than ever, the legal responsibilities of employers apply regardless of the location of an employee. Under OSHA’s General Duty Clause, every employer has a general duty to “… furnish to each of his employees’ employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
OSHA has provided guidance for work from home employees who perform administrative work activities (e.g., computer work, filing, writing, research) of whom employers have little responsibility.
➔ Employer liability for employees working from home offices
OSHA is clear on its directives for employees working from home offices.
According to The National Law Review, the agency will;
Not conduct inspections on employees’ home offices;
Not expect employers to conduct inspections, and
Not hold employers liable for employees’ home offices.
Furthermore, if the agency receives a formal complaint, OSHA
will only advise the complainant on its policy in regards to the complaint and may not necessarily follow up with either the employer or employee.
➔ Employer liability for home-based manufacturing sites
Home workplaces in this category include home-based working sites where, for example, electronic components are assembled. For these home-based manufacturing sites, OSHA will only inspect if;
A formal complaint or referral of possible health and safety standard violations that could potentially lead to physical harm is received.
Employer responsibilities, in this case, are not totally non-existent, but rather limited to hazards caused by the work process. Hazards caused by the equipment or materials provided by the employer and used by the employee in working from their home site are also classified as the responsibility of the employer.
OSHA and on/off-the-job injuries for WFH employees
The line between on and off-the-job injuries may seem blurry when employees are working from home. However, OSHA remains clear on guidelines for what incidents can be considered recordable on the OSHA 300 log as a work-related injury for remote employees working from home.
According to OSHA, an illness or injury sustained while working from home can only be considered work-related if;
The injury occurs while the employee was working for pay or compensation, and
The injury or illness is directly related to the work process and not to the general setting of the home or the worker’s environment.
The agency gives several examples to illustrate applicable and non-applicable conditions.
Examples include that the employer will be liable if, for instance, a worker drops a box of documents on their foot and sustains an injury or if an employee’s fingernail is punctured by a sewing machine while they are working on a garment at home.
On the other hand, OSHA explains that the employer will not be held liable in some cases. For example, when an employee trips and falls while rushing to answer a work phone call or an employee is electrocuted because of faulty wiring in their home’s electrical system, the employer is not liable.
Tips to improve employee health and safety in the workplace
While experts agree on the success and longevity of the remote work model, employers continue to have a responsibility to reduce employees’ exposure to occupational hazards and risks.
A responsible work model has great benefits for brands and businesses and can go a long way in reducing costs, preventing reputational damage, and keeping employees healthy, happy, and productive. In the wake of the coronavirus, here are a few tips to help managers and employers get employees back to work without jeopardizing workers’ safety.
Revise policies from the top-down to make workplace health and safety a priority and responsibility for everyone, from the CEO to the janitor.
Adhere to OSHA standards on workplace safety for COVID-19, such as providing PPE like gloves, face masks, and face coverings, as well as respiratory protection when the job hazards warrant such precautions.
Follow OSHA-approved state plans as well as other relevant OSHA standards to ensure that employees work in ‘an employment and a place of employment’ that is free of recognized hazards that cause or may cause death or serious physical harm, in compliance with the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1).
Encourage employees to maintain proper hygiene and preventative measures like regular handwashing or using sanitizers, and ensure the cleaning and disinfection of frequently touched surfaces in the workplace.
Encourage employees to stay at home if they feel unwell.
Educate employees and maintain an open dialogues on strategies to reduce or prevent transmission in the workplace, protect those who are at a higher risk of adverse complications, maintain steady business operations, and minimize adverse effects on all areas of operations.
Recordability of coronavirus illnesses under OSHA regulations
On whether a case of coronavirus will qualify as an OSHA recordable, the agency states that a case can only be designated as such if there is substantial evidence that the employee was exposed at work. A case is only recordable if it also requires medical treatment beyond first aid, at least one day away from work, or one day of work restriction. If a case does not meet these requirements, the employer is not expected to record it on the OSHA 300 log.
Knowing when OSHA applies to your business
OSHA applies to every business with one or more employees.
This implies that everyone to whom you give a paycheck is covered by OSHA regulations. The policies, however, exclude self-employed business owners, freelancers, or independent contractors, but can apply to the spouse of the business owner provided the spouse also receives a paycheck.
State vs federal OSHA regulations
While OSHA regulations are federal law, some states also have their own OSHA laws. In most cases, the state’s OSHA laws will take precedence over federal laws. The OSHA website provides a detailed chart explaining state-approved OSHA plans; check it out to see which plans are applicable in your state. If no such plans are in place for your state, the federal OSHA laws will, therefore, hold sway.
Employers should consider close monitoring of OSHA and following public health authorities for health and safety guidelines. The standards will most likely change as time goes on and the pandemic itself evolves. Keeping employees healthy and safe is hugely beneficial to every organization. Not only will safety improve productivity, but it will also help the organization to avoid preventable costs, which of course, could eventually impact the bottom line.