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Vacation Policies and Safe Workplaces

August 4, 2020

The new, stricter Massachusetts travel ban took effect on August 1.  

 

What you should not do: You should not tell your employees that they cannot travel to higher risk states for personal reasons.

 

What you can do: You can implement an up to date CDC screening and follow COVID-19 OSHA, CDC guidelines and comply with state travel bans. Employers can also strongly discourage their employees from taking leisure travel to non-lower risk destinations.


Employers should also implement a process by which employees traveling outside of the lower-risks states for personal or leisure travel inform the employer in advance to discuss the potential impact of such travel.  For instance,

  1. whether the employee will be required to quarantine for 14 days before they may return to work, and if so, whether it is feasible for the employee to be out for this extended time;

  2. whether the employer will be requiring the employee to undergo COVID-19 testing before returning to work, which could then shorten the required quarantine, presuming a negative result;

  3. whether telework may be available during the employee’s quarantine, etc.).

Honest communication is important: keeping your employee population safe while at work is one of the primary responsibilities of any employer.

 

Why? Failure to implement these best practices can lead to workplace COVID infection. Now, as a general rule, infectious disease transmission is not a reportable workplace injury for purposes of OSHA recordkeeping and reporting requirements, but COVID infection is different.

 

It is being treated as a recordable injury where the infection is determined to be work-related

Maintaining a compliant screening process and adhering to guidelines can help reduce the likelihood of workplace transmission, and therefore reduce the likelihood of having an OSHA reportable event while keeping your employees as safe as possible at work.

 

It can be challenging to determine work relatedness in a pandemic environment where the source of the infection may not be readily apparent. In recognition of the difficulty, OSHA has issued enforcement guidance relaxing the otherwise rigid reporting requirements.

 

 

What are the considerations for determining work-relatedness

 

Determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, employers should apply the following considerations as per OSHA:

  1. The reasonableness of the employer's investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area. 

    It is sufficient in most circumstances for the employer, when it learns of an employee's COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee's work environment for potential COVID-19 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.
     

  2. The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination.

    If the employer later learns more information related to an employee's COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.
     

  3. The evidence that a COVID-19 illness was contracted at work. Employers should take into account all reasonably available evidence, in the manner described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:
     

    1. COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.

    2. An employee's COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

    3. An employee's COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

    4. An employee's COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.

    5. An employee's COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

Employers should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee her/himself.

 

By consistently applying practices aligned with these standards, you increase the safety of your workplace and reduce the likelihood of workplace transmission.

 

Please know that while we strive for relevant and accurate information, this remains a fluid and evolving situation. We are not lawyers so please understand the information provided here does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only.

 

 

 

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