EMPLOYERS’ OBLIGATION TO KEEP EMPLOYEES SAFE

In these ever-increasing days of social distancing and the on-going global spreading of the Coronavirus, we worry about being able to go to work safely and staying well. We expect to have laws to protect us in the workplace. The agencies that regulate employer’s obligations to their employees include OSHA, Worker’s Compensation, and ADA.
Under the Occupational Safety and Health Act (OSHA), your employer must provide a safe workplace. This agency has a process that it can enforce in its capability to issue citations with penalties to employers that can include fines. Section 5(a)(1) of the Act of “General Duty Clause” states that an employer is required to protect its employees against recognized hazards to safety or health, which may result in severe injury or death. To be terminated for refusing to work with unsafe working conditions is not legal. Do not hesitate to report dangerous situations to first management, and if that is untrustworthy or unsuccessful, then report it to the U. S. Department of Labor.
OSHA must prove the hazard is causing or is likely to cause death or serious physical harm
Six main risks are:

  1. Biological. Biological hazards include viruses, bacteria, insects, etc. that can impact health.
  2. Chemical. These are hazardous harmful substances. The harm can result in both health and physical effect. These may result in skin irritation, respiratory system irritation, blindness, along with corrosion and explosions.
  3. Physical. These can include environmental influences that may harm someone without necessarily touching them, including noise, heights, pressure, and radiation.
  4. Safety. These are hazards that create unsafe working conditions. For example, exposed electrical wires that may result in a tripping risk or worse. This type of risk is a physical hazard, as well.
  5. Ergonomic. Ergonomic hazards are a result of physical factors that may result in musculoskeletal injuries. For example, a workstation that is not a well set up office.
  6. Psychosocial.

These types of hazards include those that can hurt an employee’s mental health or wellbeing. For example:

  • Alcohol in the workplace.
  • Body stressing.
  • Bullying in the workplace.
  • Customer aggression.
  • Driver fatigue.
  • Remote or isolated work.
  • Work-related mental stress.
  • Sexual Harassment.

Since the Occupational Safety and Health Administration (the agency) does not have a specific regulation that deals with the virus, it will use the General Duty Clause. OSHA will rely on recommendations by the Centers for Disease Control (CDC), the National Institute for Occupational Safety and Health(NIOSH), the World Health Organization (WHO). If the agency can prove that the employee at a workplace is likely to be exposed to the virus, OSHA will require the employer to develop a plan with safety procedures to protect its employees called a response plan. For example, a response plan for healthcare providers, emergency responders, supermarkets, and transportation workers will have to be issued.
Please note that something in the workplace that is distasteful or annoying doesn’t qualify it as an OSHA occupational hazard.
Developing a Response Plan

The employer will be expected to create a program based upon a “hazard assessment” of the potential exposure at the workplace. Employee training for awareness of the hazard, develop procedures requiring the use of personal protective equipment (PPE). For example, employees must wear gloves and masks if they are necessary to prevent infection and to prevent transmission along with preserving medical records. It is also essential to develop a procedure of reporting and detecting infection in employees, maintaining documentation of the medical surveillance, and recording any illnesses and which are occupationally related to the OSHA 300 log. This log is used for recording and reporting any occupational injuries and diseases.
Whistleblower Protection
An employee could refuse to go to work if he or she believes that they are in danger at the workplace due to the Coronavirus being present or that the disease could be there. An employee who does so in now in the position of protected activity is safe from discipline by the employer for not coming to work until the employer can provide evidence that there is no hazard. Alternatively, the employer has a response plan in place that with protecting the employee from developing the disease from exposure.
Protected activity can take many forms. It is a legal definition that defines activities that workers may engage in without fear of retaliation by supervisors or employers—for example, being a witness participating in a complaint or investigation. This participation would be a protected activity.
Retaliation is against the law. It takes many forms, as well. It can be verbal or physical abuse, transferring or demoting the employee to a less desirable position, making the employee’s job harder and reprimanding the employee, giving a low-performance evaluation, and creating a hostile work environment.
If you have questions about what your rights are at the workplace, please call Massey & Duffy for a free consultation.

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