(Answer: Put your distancing in writing.)
1. Why draft a workplace distancing policy?
Oregon Executive Order No. 20-12 requires it. All businesses not otherwise closed by the order are required to establish, implement and enforce social distancing policies. The penalty for not adhering to the order is a class C misdemeanor. However, criminal enforcement does not seem to be a high priority for the state. Oregon has established a “hotline” for employees to report nonconforming employers. OSHA fields these calls and has threatened to inspect and shut down businesses that are not complying with the governor’s order.
2. What is so important about this policy statement?
A well-drafted policy will not only comply with the governor’s order and keep your employees safe, it should help limit your liability for possible claims by employees and others. Soon we may see a wave of claims brought by employees, arguing that they contracted COVID-19 due to employer negligence. Negligence involves failing to exercise reasonable care. In determining reasonableness, courts look to community standards.
Arguably, standards for how an employer should safeguard against COVID-19 have been published by the Oregon Health Authority (OHA), Occupational Safety and Health Administration (OSHA), and Centers for Disease Control (CDC). A well-drafted policy should incorporate these standards. In addition, the policy should address the state and federal requirements governing the use of Personal Protection Equipment (PPE).
An employee may also argue that a workplace is unsafe due to an employer’s failure to implement appropriate COVID-19 policies. If deemed unsafe, an employee may be entitled to stay home and the workplace may be shut down by OSHA.
3. Should the policy address the conduct of and with non-employees?
Yes. Executive Order No. 20-12 requires the policy to address how the business will maintain social distancing protocols for visitors. Customers, contractors and any other visitors are not just a possible source of transmitting COVID-19 but also a possible source of legal complaints. They could claim that they contracted COVID-19 due to a nonexistent or poorly drafted workplace distancing policy. In addition to drafting protocols for such visitors, you should consider further protecting your business with an indemnification and hold harmless agreement.
4. Does this apply if my employees telecommute or we shut down our business?
Every business should develop a workplace distancing policy. Whether the business has a single employee at the office to pick up mail and perform administrative tasks or the entire workforce is currently absent but will eventually return. COVID-19 will likely forever change the way we interact and conduct business with each other. New standards will emerge. Forward thinking employers should have policies to address and protect themselves in this brave new world.
Please contact us if you need assistance in drafting a workplace distancing policy or have any related questions or concerns.