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State and Feds Issue New Safe Workplace Rules for Essential Businesses

April 8, 2020

On Tuesday, April 7, 2020, Governor Lamont issued his latest Executive Order (7V) mandating new workplace safety rules to be promulgated by the Department of Economic and Community Development (DECD) and the Department of Public Health (DPH).  Shortly thereafter, the new rules were released.  For essential businesses, these new rules should be implemented immediately. Also this week, the federal Occupational Safety and Health Administration (OSHA) released new guidance urging employers to follow ten safety tips.  A summary of each of these new developments follows.

Background

On March 10, 2020, Governor Lamont proclaimed a state of emergency throughout the State of Connecticut as a result of the COVID outbreak. Since that time, Governor Lamont has issued twenty-one Executive Orders designed to further protect the residents of Connecticut by restricting social gatherings, closing schools, and closing non-essential businesses.  Businesses deemed “essential” were allowed to remain open, and relatively free of any governmental restrictions.  In the last few weeks, the Governor has issued workplace safety rules for stores and restaurants to follow but had not dictated much for essential businesses.  However, Executive Order 7V changes that and requires businesses to take “additional protective measures to reduce the risk of transmission of COVID-19 and makes significant changes in regard to the operations of essential businesses.”  In accordance with Executive Order 7V, the DECD and DPH issued “legally binding statewide rules prescribing such additional protective measures.”  These rules provide comprehensive procedures for essential employers to follow.

Executive Order 7V

The Order itself is very short and high-level and leaves the details of the rules to DECD and DPH. Nevertheless, the Order makes clear that:

  • The Governor believes that some workplaces are not placing as great an emphasis on safety as is required under the circumstances.
  • The rules issued by DECD and DPH will be “binding” on essential businesses, and “shall be mandatory throughout the state, for essential businesses and nonprofits and any other business or nonprofit permitted to operate.”
  • These rules “supersede and preempt” any contrary or conflicting orders issued by towns or cities in response to the COVID pandemic.  
  • These rules are effective immediately, and there is no grace period for employers to implement them gradually.

Safe Workplace Rules for Essential Employers

The rules released on the DECD website are broken into seven different categories, most of which will apply to any essential business that is still operating.  The last category, however, is directed solely to construction businesses.  Given their “binding” nature, businesses will need to review the rules in their entirety and determine which ones apply to their business so they can be implemented as soon as possible.  Below we set forth some of the most important rules, as well as further issues employers will need to consider. 

  1. Requiring essential businesses to limit non-essential visitors, and to question approved visitors “about their current health condition and recent travel history.” 
    1. Such inquiries represent a significant departure from current practices, and it is unclear who constitutes an “approved visitor.”
  1. Requiring businesses to increase physical space between employees and customers through partitions or using a drive-through when available, and also to “provide masks wherever close personal contact is unavoidable.”
    1. Businesses who do not currently have masks for their employees should immediately begin searching for some.
  1. Requiring businesses “whenever possible” to use nights and weekends to spread out shifts, and also to go from one or two shifts to three.
    1. Unionized workforces should assess all obligations related to any collective bargaining agreements, and non-unionized workplaces should ensure that new schedules are distributed in a fair, non-discriminatory way.
  1. Requiring businesses to increase ventilation rates and the percentage of outdoor air that circulates into the system where possible, and also “opening internal doors where possible.”
    1. Businesses must assess security issues created by such measures.
  1. Advising that where possible, employees should take their temperature before they go to work, and stay home if they have a temperature above 100.4 degrees Fahrenheit.
    1. Traditionally, employers were restricted in their ability to conduct medical evaluations of employees.  In its updated guidance, however, the EEOC stated that it was permissible for employers to take employees’ temperatures at work during a pandemic.  In certain workplaces, this may be more advisable than relying on employees to take their own temperatures at home.  Our guidance on temperature checks is available here.
  2. Reminding employers that if an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).
    1. Failure to maintain confidentiality can create exposure to the employer for claims brought by employees.
  3. Retail stores have an additional set of safe store rules, which were adopted on April 3, 2020.

At his press conference on April 7th, Governor Lamont indicated that the Department of Labor will visit big companies to determine compliance and he asked employees to help monitor smaller companies.  Connecticut’s OSHA still maintains the right to conduct inspections of the workplace as well. 

OSHA Update

In addition to the new state guidance, the federal OSHA released additional tips that employers should be following in the workplace and presented them in a “Top 10” list.  The list is less specific than the state law requirements, but have several obvious similarities.  Here is OSHA’s list:

1. Encourage workers to stay home if sick.

2. Encourage respiratory etiquette, including covering coughs and sneezes.

3. Provide a place to wash hands or alcohol-based hand rubs containing at least 60% alcohol.

4. Limit worksite access to only essential workers, if possible.

5. Establish flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if feasible.

6. Discourage workers from using other workers’ phones, desks, or other work tools and equipment.

7. Regularly clean and disinfect surfaces, equipment, and other elements of the work environment.

8. Use cleaning chemicals with Environmental Protection Agency (EPA)-approved disinfectant labels with claims against emerging viral pathogens such as the coronavirus.

9. Follow the manufacturer’s instructions for use of all cleaning and disinfectant products.

10. Encourage workers to report any safety and health concerns.

Stay Informed

We will continue to update employmentlawletter.com and our COVID-19 Resource Center as additional guidance and rules are issued by federal and state agencies.  If you have specific questions regarding this guidance, please contact Peter Murphy at pmurphy@goodwin.com or Daniel Schwartz at dschwartz@goodwin.com.

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