The COVID-19 pandemic has caused unprecedented disruption to businesses in Massachusetts. Massachusetts business owners should begin considering how they can safely and lawfully reopen.
Business owners have expressed concern about potential liability for workers and others who become sick due to contact with other employees, customers, and outside vendors. These concerns are certainly valid. First, employers should make sure that they are complying with existing state and local health and safety guidelines already in place and as new guidance is given by the state and local government. Requiring that masks be worn and that social distancing be observe, if possible, seem reasonable at this time and are required by numerous orders.
The Federal Occupational Safety and Health Administration (OSHA) requires employers to “provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.” Employers should keep this in mind when determining when and how to allow employees to return to work. Business owners will almost certainly face legal liability if they disregard these regulations and require employees to work in an unsafe environment.
The easiest step a business can take to reduce risk is to ensure that workers remain home if they are sick or have any reason to believe they have been exposed to COVID-19. As an initial matter, you need to make it clear, and put it in writing, that employees may not return to work if they have been diagnosed with COVID-19, or have been in contact with others who have been diagnosed with it. We suggest updating existing employee handbooks to include language requiring employees to stay home if they have been diagnosed with COVID-19, have been in contact with individuals who have it, and/or if they show certain symptoms relating to COVID-19. Your additional language should make it clear that failure to comply will result in discipline including potential termination.
Additionally, businesses may want to consider making physical changes to their workspaces in order to reduce the potential for illness. For example, businesses can consider:
- Hiring a contractor to perform a “deep cleaning” in the workplace before workers return. Workers will be safer, and likely more amenable to returning, if their environment is clean and sanitized.
- Reconfiguring workspaces. These days, employees may welcome the chance to work in a cubicle or an enclosed office if they had been working in an “open floor plan” in the past.
- If your business has traditionally use a lobby/reception area/waiting room, you may want to close those areas to encourage clients and customers to social distance as well.
- High traffic areas such as kitchens and communal dining areas may be closed or used on a staggered schedule to prevent workers from coming into close contact with one another.
- Consider allowing more employees to work from home, if practicable.
- Provide protective gear and/or sanitization items to your employees (such as masks, gloves, and hand washing/sanitizing stations).
- Post signage at all entrances clearly communicating to staff and customers that they may not enter if they are sick, or show any symptoms of COVID-19
- Consider bringing back employees gradually or staggering work schedules to encourage social distancing in the workplace.
Employers with additional questions should also consider contacting their local boards/departments of health, or visiting the CDC’s webpage concerning employer guidance:
Attorney Andrew M. Kepple has more than 10 years of experience in state and federal courts, concentrating his practice in the areas of landlord-tenant law, civil litigation and employment law.
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