Flexibility, creativity, compliance needed

Gavel to Gavel

published in The Journal Record | May 21, 2020

The COVID-19 pandemic has caused serious disruption to Oklahoma workplaces, and employers are still trying to figure out what the new normal — at least for now — looks like. One thing is for certain: It’s not like anything we’ve seen before.

In a recent Oklahoma Employer Reopening for Business survey conducted by McAfee & Taft, nearly 80% of the respondents said workplace safety was their primary concern about reopening. And with good reason.

Employers have much to be concerned about when it comes to legal compliance — from the Occupational Health and Safety Administration’s general duty clause, which requires them to maintain a safe workplace, to the National Labor Relations Act, which gives employees the right to discuss or complain if the employer’s return-to-work measures are unreasonable without fear of retaliation. And then there’s always the threat of having to defend against a workers’ compensation claim or liability lawsuit.

To defend themselves against negative publicity or legal claims that they acted unreasonably or unwisely, employers must follow recommendations of the CDC and state and local health authorities. But undertaking such a task is complex. What works for one company doesn’t work for another. Employers must be extremely thoughtful in how they proceed, seeking legal counsel to create customized policies and procedures that fit their situations and staying flexible and creative. Also critical is the need to document and communicate the steps being taken to make the workplace safe.

A comprehensive return-to-work program should cover a myriad of potential issues, including compliance with the Americans with Disabilities Act and Families First Coronavirus Response Act, scheduling of workers, changes to the physical workspace to encourage social distancing while still complying with applicable laws and security measures, meeting restrictions and guidance, employee and visitor screening or monitoring, on-site testing, travel restrictions and reporting, updated cleaning protocols, availability and use of PPE, and employee communications and training. And, of course, employers must have a plan in place if an employee tests positive for or is exposed to COVID-19.

Additionally, employers who wish to expand their remote working arrangements should consider having a formal telecommuting policy that covers all the legal risks and is tailored to their organization.

It’s a whole new world out there. Safety first is a motto every employer should live by.

This article appeared in the May 21, 2020, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.