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COVID-19 in the Workspace: Is Enough Enuf? | Bradley Arant Boult Cummings LLP

You’ve been to the webinars about COVID-19. You’ve read the trade publication tips. You’ve implemented measures to protect your workers. You’re ahead of the game, right? Well, you’re certainly ahead of the sheriff who reportedly instructed his employees not to wear masks in the office. If a visitor enters Sherriff Billy Wood’s office with a mask, she or he will be instructed to remove it.

Employers generally have an obligation to provide a reasonably safe place for employees to work and for invited guests. In today’s COVID-19 environment, this may involve daily temperature checks of employees and visitors, daily certifications by each employee that she or he has no COVID-19 symptoms or exposure, and a requirement that prudent distancing be maintained when possible. Visitors too should likely be required to make a similar certification.

CDC guidance suggests essential workers may not require quarantining after potential exposure. Nevertheless, an employer may consider quarantining crews exposed to an infected person, particularly if face masks were not being used or distancing was not followed or possible.

Each of these safety steps is expensive, both in additional check-in time for employees and in work efficiency. That expense should be measured first against the well-being of the workforce. If the employer has the duty to provide a reasonably safe place to work, then that duty is perhaps satisfied by these safety steps.

So, you’re ahead of the curve. You have gate monitoring in place; toolbox meetings to discuss COVID-19 issues each morning; and you require certifications from each employee that she or he is symptom-free every day. Many of our readers have attended seminars emphasizing the importance of implementing good contractual and safety practices and of documenting them.  Clearly, with the coronavirus, an employer should consider whether it can put simple, effective documentation of its proactive COVID-19 prevention into place. Can the company computerize the morning representation by its employees? Can the temperature log be automated? How can the company confirm that it held daily meetings with groups of employees at the site to stress practicable COVID-19 preventive measures?

Good recordkeeping can pay off in several important ways. It can help prevent employee infections because management is requiring attention to the issue through documentation. It may also minimize the isolation at home of entire crews. And, it can allow the employer to prove it implemented and monitored the application of reasonable steps in the event of an employee who becomes infected with COVID-19 and claims it was caused at the workplace.

At least one state, Virginia, has issued a regulation classifying employers in construction jobs as medium risk and requiring those at medium risk with 11 or more employees to develop a preparedness and response plan that includes several factors, including the designation of a person responsible for administering the plan. Some companies are appointing such a person not because it is required by an express regulation, but for the reasons we mention above: the health and well-being of the workforce.

Should you take a deeper look at the impact of COVID-19 on your workforce? Are there safety measures that you can take that will make your employees feel safer? Does COVID-19 have a disproportionate effect on women or minorities? Because of the impact of childcare costs on women in the workplace, some recent findings indicate a disproportionate impact on women. Is that something you should study with respect to your workforce? Are there targeted measures you can take to help with this? Is it important enough to document any effort your company makes to analyze that impact, if any? Is there an obligation to do so?

A document will not “vaccinate” your workforce. But it can serve at least three salutary purposes: 1) encouraging your management to consider how to implement a COVID-19 plan; 2) lowering the risk of infections at your project; and 3) allowing you to show third parties that your company was safety conscious during this “new normal.”


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