As business owners continue to navigate through the uncertainty the COVID-19 crisis has caused, many essential businesses which have remained open face continued challenges in ensuring the safety of their employees. And as restrictions are slowly lifted, many if not all businesses will be operating in the world of the “new normal”.
In my last article, Rehiring after COVID-19, I talked about the importance of having a structured plan when deciding which people to bring back from a layoff. This article will explain how you will keep your employees safe.
As is the case now with essential businesses, employees will remain fearful of coming to work. Understandably, there will be a continued concern of getting the coronavirus and also of bringing it home to their families. Most businesses are trying to do the right thing by ensuring they are in compliance with CDC and OSHA guidelines, along with the executive orders signed by New Jersey Governor Phil Murphy.
It would be fair to say that, even when COVID-19 restrictions begin to be lifted, many if not all of the current federal and state guidelines will remain in effect well into the future.
New Jersey Conscientious Employee Protection Act
In New Jersey, businesses of all sizes need to be mindful of the NJ Conscientious Employee Protection Act, also called the New Jersey Whistleblower Act.
CEPA prohibits employers from retaliating against an employee because the employee engaged in a fairly wide range of what are referred to as “protected activities.” This includes objecting to or refusing to participate in an activity the employee reasonably believes (1) is in violation of a law or a legal regulation; (2) is fraudulent or criminal; or (3) is incompatible with a legal requirement relating to public health, safety, welfare or the protection of the environment.
The law also protects employees who disclose or threaten to disclose information to a supervisor or a public body about the employer’s activity, policy or practice that the employee reasonably believes: (1) violates the law or a legal regulation, or (2) is fraudulent or criminal.
CEPA requires that an employer shall conspicuously display and, with employers of 10 or more employees, annually distribute to its employees a notices of its employees’ protections and obligations under the statute.
CEPA and COVID-19
So, how does CEPA affect essential businesses trying to maintain a workforce amid employees’ fears of catching the coronavirus? Let’s first understand the guidance in place to protect workers.
OSHA has developed an Occupational Risk Pyramid COVID-19, which assigns a risk exposure level based on industry and has also published guidelines for the necessary control measures that businesses need to put in place to ensure the safety of their employees based on the company’s risk exposure level.
As an employer, it’s imperative that you review the OSHA Risk Pyramid and OSHA guidelines, and understand and implement the necessary precautions needed to ensure you are in compliance.
If an employer does not ensure a safe workplace, an employee has every right to invoke their rights under CEPA.
To give you an idea of the amount of employee complaints, the hotline to report COVID-19 employer complaints became overloaded and the website has since been taken down.
Communication
Employers need to do everything possible to calm the fears of their employees, and proper communication and transparency are key.
Use all possible types of communication (e-mail; company intranet and internet sites; postings in heavily traveled areas; updates to employee handbook) to explain the policies and processes you are putting in place to ensure that the workplace is safe.
Based on your company’s OSHA Pyramid Risk Level as explained earlier, some things you should communicate to your employees include:
>Prohibiting non-essential visitors from entering the worksite;
>Mandating the limiting of worksite meetings to groups of fewer than ten individuals;
>Requiring individuals to maintain six feet or more distance between each other wherever possible;
>Staggering work start and stop times where practicable to limit the number of individuals entering and leaving the worksite concurrently;
>Staggering lunch breaks and work times where practicable to enable operations to safely continue while utilizing the least number of individuals possible at the site;
>Restrict the number of individuals who can access common areas, such as restrooms and breakrooms, concurrently;
>Providing face coverings and gloves for workers;
>Adhering to infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
>(In non-white collar environments) Limiting the sharing of tools, equipment, and machinery;
>In strategically placed locations, sanitization materials, such as hand sanitizer and sanitizing wipes, for use by workers and visitors; and
>Frequent sanitization of high-touch areas like restrooms, breakrooms, equipment, and machinery.
Keep in mind that the above list is more generic in nature and very well may be more inclusive based on your companies’ OSHA Pyramid Risk Level.
NLRA and COVID-19
Another law which protects workers is the National Labor Relations Act. The NLRA protects all employees, even those not represented by a union, who walk off the job for activity such as:
>Making an OHSA complaint
>Walkouts for health and safety reasons
>Protesting for health and safety reasons
>Refusals to work for health and safety reasons
Unemployment Compensation
In New Jersey, people receiving unemployment will get an additional weekly amount of $600 in federal Emergency Pandemic Unemployment Insurance.
Some employees would actually rather be laid off, since someone who gets the max benefit rate of NJ Unemployment Comp ($713), plus the stimulus ($600) takes home $1,313.
If an employee feels that the workplace is unsafe, they may walk off the job and could very well receive unemployment, claiming “constructive discharge – workplace is too unsafe to return”.
If an employer is following the OSHA guidelines and the employee’s fears are deemed unfounded and unreasonable, that employee will need to return to work or will be cut off from unemployment compensation.
Example Scenarios
Although I have found that just about every issue surrounding the workplace and COVID-19 has its own unique circumstances, in an effort to provide some further guidance regarding common occurrences happening during this pandemic, I wanted to provide the following scenarios.
Scenario #1
>Employee wants to stay home because he is 60-years old with asthma.
>Can the employer terminate him and backfill his position?
Once the employee has exhausted personal sick time (keep in mind what employee would be eligible to receive in sick time under the NJ Earned Sick Leave Law and the 80 hours of sick leave provided under the Families First Coronavirus Response Act, the employee most likely will be eligible for Emergency Pandemic Unemployment Insurance.
Scenario #2
>Employee refuses to come to work claiming she is afraid of getting COVID-19 because she does not believe her co-workers are remaining six fee apart.
>Can the employer terminate her and backfill her position?
Possibly, but only if the employer is confident they are making a good faith effort to ensure all employees are following Governor Murphy’s executive order requiring individuals to remain six feet apart “wherever possible”.
Scenario #3
>Employee refuses to come to work because he has elderly parents in the home and is afraid to potentially expose them to COVID-19. He has been out of work on sick leave for a month, but it has expired.
>Can the employer terminate him and backfill his position?
Yes. This person’s refusal to return to work has nothing to do with the work environment.
Scenario #4
>Several employees walk off the job, claiming that employer has not provided enough hand sanitizer and is looking the other way when seeing groups of employees not social distancing.
>Can the employer terminate them and backfill their positions?
No. This is protected concerted activity under the National Labor Relations Act.
Scenario #5
>One employee refuses to come to work claiming that employer should be doing more to make the workplace safe.
>Can the employer terminate him/her and backfill his/her position?
Depends on the company risk level as determined by the OSHA COVID-19 Occupational Risk Pyramid and whether or not the proper OSHA guidelines for that level of risk are being followed.
All of this information is being provided to give New Jersey businesses some guidance on the handling of COVID-19-related workplace issues.
Do not hesitate to reach out to Marzano Human Resources Consulting should you need further assistance. You have worked too hard to build your business. With some guidance, you will get through this and once again experience prosperity.