Navigating Workplace Safety in a COVID-19 World

For the past several months, we’ve watched the world trying to rebound from the worst pandemic in over 100 years. Many schools have returned to in-person learning, and social venues have followed suit. Plus, after months of remote work or no work whatsoever, many employers requested their employees to return to pre-pandemic normalities, though no one truly knows what that means.

These shifts in America’s workforce have created challenges for employers and employees, HR teams, IT specialists, and insurance carriers, to name a few. Let’s look at the complicated idea of workplace safety in a COVID-19 world and what that means for the parties involved.

Workplace Safety Regulations

It’s no secret that the global pandemic created mounds of confusion for nearly everyone. The Centers for Disease Control and Prevention (CDC) has issued multiple guidelines. However, these standards have been primarily unclearOpens a new window and overly nuanced. Of course, battling misinformation about the virus has been a chore in itself, especially when the agency has such little reliable data.

As a result, employers are highly concerned about bringing their teams back to in-office work. HR departments are on pins and needles navigating the situation. The show must go on — but how?

The Occupational and Safety Health Administration (OSHA) was created for dire situations and everyday challenges accompanying U.S. business operations. Last year, OSHA released the Guidance on Returning to WorkOpens a new window to facilitate employers implementing new and updated workplace safety policies and procedures. The document outlines various phases, addressing hygiene, hazard assessment, social distancing, illness control, etc.

The U.S. Equal Employment Opportunity Commission (EEOC) is also heavily involved in the U.S. workforce safety guidance. The agency has published a webpage dedicated to the coronavirus and COVID-19Opens a new window , addressing incentives under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other federal proceedings.

See More: 3 Ways To Make Employee Learning Programs More Immersive

Vaccine Mandates

With so many complexities unfolding currently, it’s hard to imagine that the situation could become more puzzling. However, the Biden Administration has issued new initiatives regarding vaccine mandates and employers. With U.S. history peppered with vaccine mandates, they are nothing new, and yet, these mandates generally cause a stir.

Coming directly from the White House, here’s an overview of the Administration’s initiativesOpens a new window :

• Requiring all employers with 100+ employees to ensure their workers are vaccinated or tested weekly
  Requiring vaccinations for all federal workers and for millions of contractors that do business with the federal government
• Requiring COVID-⁠19 vaccinations for over 17 million health care workers at Medicare and Medicaid participating hospitals and other health care settings
• Calling on large entertainment venues to require proof of vaccination or testing for entry
• Requiring employers to provide paid time off to get vaccinated

So, can employers demand their employees to get the vaccine? The short answer is yes; however, there are exceptions. According to the EEOC, employers generally can mandate COVID-19 vaccinations without federal anti-discrimination law backlash. Employers also have the right toOpens a new window :

• Ask about specific virus-related symptoms
• Send employees with virus-related symptoms home
• Administer a COVID-19 test to employees
• Bar employees from the workplace, upon refusing to answer questions regarding COVID-19
• Ask why employees failed to show up for work

As mentioned, employers have many rights and responsibilities relating to workplace safety based on federal and state regulations. Still, there is a loophole, per se, that some employees can access if applicable.

Accommodating Employees

During 2020, employers experienced plenty of push-pull on the state level. With the federal government neck-deep in regulations, employers now have stricter and more straightforward guidelines. For example, the concept of employee accommodations is a central theme that has surfaced.

The good news is that employers can accommodate employees’ requests in various ways. The federal government can’t necessarily “my way or the highway” the entire ordeal, but it can set specific standards. According to attorneys at Fisher Phillips, “Consensus in the legal community has been that employers may require at-will employees to be vaccinated, subject to accommodations that may be required for medical or religious reasons.”

Naturally, employee accommodation and workplace safety are tightropes, and what one employee deems okay may not be okay for another. As imagined, plenty of legal ramifications and costly lawsuits have stemmed from employment-related issues.

That said, the ADA outlines what it considers to be reasonable accommodationsOpens a new window , such as:

• Change job tasks.
• Provide reserved parking.
• Improve accessibility in a work area.
• Change the presentation of tests and training materials.
• Provide or adjust a product, equipment, or software.
• Allow a flexible work schedule.
• Provide an aid or a service to increase access.
• Reassign to a vacant position.

Many accommodations will help employers approach workplace safety while facing a deadly virus still threatening individuals nationwide.

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Legal Considerations

In the heat of the pandemic, our American society became more litigious than ever before. Employment practices liability cases skyrocketed, increasing in frequency and severity. Plus, Americans were on the edges of their seats in the wake of the #MeToo and Black Lives Matter movements.

HR departments stumbled through health and benefits information the best they could. And insurance underwriters considered 2020 nothing less than a nightmare, with highly uncertain outcomes and only specs of litigation history to guide them. Backed by Fisher Philips’ data and what we’ve experienced in 2021 so far, COVID-19 litigation and its aftermath continues to create a shaky snapshot of what to expect in the future:

Source: Founder ShieldOpens a new window

Moving forward, we expect the uptrend in EPL claims to continue, which will undeniably increase EPL insurance premiums and retentions. On a similar note, my colleague, Kyle Jeziorski, offers insight, “I think insurers will try to add COVID-19 Exclusions to EPLI policies and potentially offer the coverage for an additional premium.”

Companies trying to attract top talent will likely revisit their employee health and benefits plans to secure the team they genuinely need in their corner. Lastly, as we navigate workplace safety concerns, employers would do well fostering an open and ongoing conversation with their commercial insurance broker to ensure no gaps in coverage exist.

Finding professional success typically means protecting the ground already covered while maintaining forward momentum at the same time. There is a path through all the workplace safety concerns and issues, but company leaders must rely on experience and sound legal advice — and simply steady on.