COVID-19 Resource Center

March 06, 2020

CORONAVIRUS - Employers Have a "General Duty" to Act

OSHA governs health and safety regulations in the workplace.  When a disease or virus has a significant impact on a global level, the World Health Organization will declare a pandemic.  As an example, WHO declared a pandemic in 2009 when the world confronted the H1N1 virus.  As of today, there has been no declaration of pandemic in relation to the Coronavirus nor has OSHA specifically provided regulations for employers for address of a pandemic.  That does not absolve employers from a duty to act.

OSHA does impose a “General Duty Clause” for employers.  In particular, §5(a)(1) of the Occupational Safety and Health Act, requires that each employer furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.  One element or criteria utilized by OSHA in determining whether an employer had a duty to act under the clause is whether the threat or hazard was reasonably recognized and whether it could be feasibly reduced.

Employers should take action to maintain a safe and healthy work environment.   At this time, we suggest that our employer clients concede that the Coronavirus is real and may present a threat to the work environment.  This is not to suggest a basis for panic. Instead, we endorse a calm and sensible approach to a documented, proactive plan, commensurate with both your industry and the suggested threat to your industry.  OSHA has established four industry levels or categories to include:

  • Lower Exposure Risk:  Industries that do not require immediate contact with infected parties and or the general public.  An example may be office employees.
  • Medium Exposure Risk:  This category may include employees with regular contact with the general public such as bank or grocery workers and/or school teachers.
  • High Exposure Risk:  This includes businesses in industries known to work or have contact with people who may be exposed to the virus. First responders, healthcare workers and practitioners in the long-term care community.
  • Very High Risk Exposure:  This includes healthcare employees (doctors, nurses, and dentists) performing aerosol-generating procedures (procedures that stimulate coughing and promote generation of aerosols) on patients known or suspected to be infected with a pandemic influenza; healthcare or laboratory personnel obtaining or handling specimens from pandemic patients. 

An employer’s plan for limiting exposure and providing a secure and safe workplace is directly related to the type of industry and level of risk.  Employers should consider how they might collect and appropriately disseminate information from verified local, state and federal authorities.  In situations like that presented by the Coronavirus, education is a critical component to an effective plan.  To that end, employers should also consider a point person for dissemination of information, as well as a committee or team for identifying and implementing necessary components of an effective strategy for securing the workplace. 

Cipriani & Werner, P.C. is prepared to assist you through this period.  Our Employment Practice Group is ready to answer questions, navigate employment concerns, identify your category of risk and develop a specific strategy for address.  We emphasize a calm and considered approach. This is a time and opportunity for employers to take the lead in the development of a safe and productive workplace.  Additional articles pertaining to considerations for leave, basic precautions, flexible schedules and work from home opportunities are being developed and will be disbursed in the next few days.

If there is a particular concern or need for immediate review, please contact us immediately at 1-888-488-2638.