7/22/2020 | This week in Business Insurance Workers Compensation… – Editor
By Angela Childers
While many employers are eager to open their doors after months in lockdown to quell the spread of COVID-19, myriad questions remain regarding how to navigate the inevitably changed workplace and protect the safety and health of workers and customers, experts say.
Enabling workplaces to come back safely is a national concern, said Lorraine Martin, president and CEO of the Itasca, Illinois-based National Safety Council. “Businesses need to do the best they can using the data that’s available right now. It’s really important for us to look at (each industry) uniquely.”
Essential businesses, such as pharmacies and grocery stores, remained open while trying to implement safety measures during the nearly nationwide pandemic shutdown. Many states began lifting restrictions on non-essential businesses last month and further loosening of restrictions is expected.
For many industries, including construction, the workplace has “absolutely changed 100% across the board,” said Pittsburgh-based Carl Heinlein, senior safety consultant for the American Contractors Insurance Group. “Now, before you come onto a project, you’re going through a health assessment, and in many cases that will include a temperature reading, and you’re probably going to go through some sort of re-education or toolbox talk discussion about social distancing.”
Contractors have a lot of questions about how they can restart projects while preventing workers from being exposed to COVID-19. They’re grappling with such issues as how to get workers through the gates and to work safely, a process that used to take 15 minutes and now can take several hours, Mr. Heinlein said.
The industry is also putting much more emphasis on safety and hazard awareness training, emergency preparedness, and hygiene and sanitation.
“We’re already hearing that increased hygiene, sanitation and social distancing are all being implemented on sites,” said Kaileigh Bowe, vice president of Naperville, Illinois-based Highland Insurance Solutions, a subsidiary of WNC Insurance Services Inc.
Many are using or planning to implement technology to monitor distancing and for contact tracing, said Cheri Hanes, Dallas-based construction risk engineer for Axa XL, a unit of Axa SA.
For instance, Proxxi Co. in Vancouver, British Columbia, modified its wristwatch-like technology created to prevent electrocution to alert workers when another person is within six feet. Norwalk, Connecticut-based Triax Technologies Inc. is using devices mounted on hardhats as contact tracers, so if a worker tests positive for coronavirus, other workers who had been in close proximity to that individual can be quickly identified. Smartvid.io Inc., based in Cambridge, Massachusetts, has created a module for onsite cameras to identify when workers are violating social distancing and other safety rules.
Landscape different for retail, restaurants
The workplace for retailers and restaurants will also look much different.
“Retail has been a little bit of a challenge for us,” said Larry Sloan, CEO of the American Industrial Hygiene Association in Falls Church, Virginia. Physical distancing in stores, particularly smaller ones, will be difficult, and there is also the risk of disease transmission on merchandise. Currently, the AIHA is recommending that retailers temporarily eliminate changing rooms, and if they allow for returned items, to place them in quarantine, he said.
“The concern with restaurants is that you have potentially greater contact between the wait staff and the customer,” he said. To mitigate that exposure, he said, restaurants will need to consider adopting policies such as reservation-only dining, limiting groups to six people, asking customers to wait outside or in their vehicles until their tables are ready, using partitions to create additional barriers between workers and diners and between diners themselves, and displaying signage vetted by legal counsel that outlines the steps the establishment is taking to protect the health of its employees and the public, Mr. Sloan said.
The meatpacking and poultry processing industry — which was ordered to remain open in an April 28 executive order by President Donald Trump — has been hard hit by COVID-19 and is grappling with ways to protect workers from the virus. Thousands of workers at more than 100 plants in the United States have tested positive for the virus, according to the U.S. Centers for Disease Control and Prevention.
Although the CDC and the U.S. Occupational Safety and Health Administration issued temporary guidance for the industry, which includes temperature checks, staggered shifts, social distancing on lines and providing personal protective equipment, the guidance was voluntary as of May. It is unknown whether the government will police adherence to the guidance and what limitations of liability may be applied, said Melanie Neumann, Chicago-based executive vice president and general counsel of Matrix Sciences International Inc., a food production advisory firm.
But plants that fail to follow the advice could be cited for violation of the OSHA general duty clause, which may be invoked when a serious hazard is recognized but no applicable regulation exists, said Eric Conn, founding partner of Washington law firm Conn Maciel Carey LLP.
With all of the uncertainty, employers in food-processing plants as well as other industries would be wise to appoint someone as a “COVID czar” responsible for staying on top of new pandemic guidance, conducting regular risk assessments and implementing controls to prevent the spread of the virus, Ms. Neumann said.
Provide education for workers
Regardless of the industry, employees need to be educated about COVID-19 and how to use personal protective equipment, such as face masks, said Diana Stegall, Tucson, Arizona-based president of the American Society of Safety Professionals.
Employers should help workers understand why there is a need to wear personal protective equipment, how to obtain the equipment, how to remove it properly at the end of a shift, and how to clean it on a regular basis to avoid bacteria buildup, she said.
“One of the biggest mistakes an organization can make is to assume that employees are educated about COVID-19 and know what to do in the event of exposure or diagnosis,” said Eric Glass, Franklin, Tennessee-based senior risk and safety advisor at safety science company UL LLC. “Educating your employees should be an ongoing, never-ending effort, even after this pandemic is over.”
If an employee does receive a COVID-19 positive diagnosis, the company should have a “situational matrix” that outlines the internal actions that should be taken, which may include notifying other employees that may have been exposed to someone who tested positive, and cleaning and disinfecting work areas, Mr. Glass said.
“OSHA has relaxed its guidance on recordkeeping of COVID-19, especially in areas where there is wide community spread,” Ms. Stegall said. “But that doesn’t mean in the insurance world that it’s not covered.”
OSHA still requires employers to take reasonable efforts, based on the evidence available, to ascertain whether coronavirus cases reported by employees are work-related, under revised guidance that took effect May 26. Confirmed cases of COVID-19 requiring medical attention beyond hospitalization or days away from work and are determined to be work-related must be recorded on the employer’s OSHA 300 log.
Employers should also talk with their third-party administrator or investigators to find out what guidance they have for policyholders and how to handle claims of COVID-19 infections by employees, said Jeff Adelson, co-managing shareholder of Newport Beach, California, law firm Adelson McLean APC.
“If someone comes to you and says, ‘I have the virus,’ seek guidance from the workers comp carrier — don’t hide it,” Mr. Adelson said. “Putting your head in the sand is not going to help.”
Employers that fail to put into place policies to protect workers could be opening themselves up to serious and willful misconduct claims — regardless of whether the worker files a comp claim, he said.
“Every employer needs to ask themselves, ‘Is my business complying with the requirements of the reopening order?’” Mr. Adelson said. Although an employer may still see workers comp claims for COVID-19, “as long as you follow the law … the likeliness of getting a serious and willful claim is remote.”
Workplaces also should examine more subtle issues, such as how many people can enter an elevator, how to accommodate the volume of workers needing a temperature check at the start of a shift, and whether to shift employees’ workdays to reduce exposure, Ms. Martin said.
“One of the other pieces you have to address … is employee stress and their mental and emotional needs as well,” Ms. Martin said. “People are going to have questions. … Have some resources to help folks navigate that.”
Employers also need to ask themselves why they believe bringing workers back to the workplace feels right for the safety and health of the organization.
“Make sure you’re communicating with your team why they’re going back,” Ms. Martin said. “We like clarity. We like to understand, especially if there’s fear.”