The following article does NOT constitute legal advice and should not be used as such. It is for educational purposes only. Readers should retain legal counsel to obtain definitive answers.
A wellness professional recently asked a wide audience what the future of wellness will look like post-COVID19. I responded that the overlap between occupational health and workplace wellness would increase. The COVID-19 virus has without a doubt raised awareness and concern about germs and their spread. Protecting workers from safety hazards, including germs, has been in the occupational health wheelhouse for a long time. Employee sensitivity to germ exposure and the anxiety that can develop alongside such sensitivity has a direct, and heavy impact on employee wellbeing. Articles abound discussing both the short-term and long-term impact this pandemic will have on our wellbeing. See e.g., https://www.cnbc.com/2020/04/17/long-term-mental-health-ptsd-effects-of-covid-19-pandemic-explained.html. Workplace wellness professionals who want to stay relevant and helpful in this post-COVID19 world must incorporate occupational health concepts into their wellness activities and programs.
Which Laws Govern Occupational Health?
The primary law that governs occupational health is the federal Occupational Health and Safety Act of 1970 (OSHA). OSHA requires most private sector employers and federal agency employers to ensure a safe work environment for employees (state and local government workers may be protected by a state program). Self-employed workers are not covered by OSHA.
Congress enacted the law because it found that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments. The regulations, which provide specific standards employers must meet to ensure a safe work environment are found at 29 CFR § 1910.
Because of the COVID-19 pandemic, the Occupational Health and Safety Administration (also “OSHA”) has issued guidance on how to protect workers during this unprecedented time. According to OSHA, steps all employers can and should take are the following:
- Develop an infectious disease preparedness and response plan.
- Prepare to implement basic infection prevention measures.
- Develop policies and procedures for prompt identification of sick people, if appropriate.
- Develop, implement and communicate about workplace flexibilities and protections.
- Implement workplace controls, such as engineering controls, personal hygiene and personal protective equipment.
- Follow existing OSHA standards, such as the general duty clause.
What is the OSHA General Duty Clause?
OSHA’s General Duty Clause at Section 5(a)(1) of OSHA, requires employers to provide their employees with a place of employment that is free from recognizable hazards that are causing or likely to cause death or serious harm to employees. The courts have interpreted the General Duty Clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death.
What does this mean for employer response to the COVID-19 pandemic? I have been getting a lot of questions lately from employees who are being asked to return to work, even though they have been working remotely over the last several weeks, because their employer wants them to return to their work building. These employees contact me because they are anxious about the virus and feel like the employer should address that anxiety by allowing them to continue working remotely until the employee feels more safe. The legal question, from an OSHA standpoint, is whether the employer is violating OSHA’s general duty clause by refusing to allow these employees to continue working remotely. I am certain this question may be tested, if not under OSHA, then by the American’s with Disabilities Act (ADA), which is another law that straddles both the occupational health and workplace wellness worlds.
Americans with Disabilities Act (ADA) and Occupational Health
The ADA provision requiring employers to reasonably accommodate employees with disabilities (or perceived disabilities) aligns, particularly in the case of COVID-19 fears, with OSHA’s General Duty Clause. If an employee who is fearful of returning to work because they may be exposed to the virus, the employer must consider the likely possibility that the employee has an underlying condition that fuels that fear. According to the Centers for Disease Control (CDC), the following individuals are at higher risk for severe illness caused by COVID-19:
People of all ages with underlying medical conditions, particularly if not well controlled, including:
- People with chronic lung disease or moderate to severe asthma
- People who have serious heart conditions
- People who are immunocompromised
Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications:
- People with severe obesity (body mass index [BMI] of 40 or higher)
- People with diabetes
- People with chronic kidney disease undergoing dialysis
- People with liver disease
The CDC list identifies a lot of conditions, some of which employers might be completely unaware. An employee who may have one of these underlying conditions, or others that haven’t yet been linked to virus vulnerabilities, is arguably protected under the ADA. Remote work may be a reasonable accommodation under the ADA. An employer’s failure to reasonably accommodate an employee protected by the ADA could find itself in serious violation of not only the ADA, but quite possibly OSHA’s General Duty Clause. As a result, employers must prepare for these types of requests as safe-at-home orders are lifted. Creating and updating workplace policies and procedures, as well as implementing workplace wellness programs that account for these new realities in a post-COVID19 world is imperative for the workplace of the future.
If you need help in drafting or revising workplace policies and procedures to address these and other concerns, the Center for Health and Wellness Law, LLC can help.
Barbara J. Zabawa
President of the Center for Health and Wellness Law, LLC
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