Refresher on OSHA guidance and state law discrimination statutes

OSHA released temporary COVID rules on November 23, 2020.

Under that guidance, employers are required to (note: some requirements are based on number of employees and industry area so be sure to consult with counsel and review the guidance):

  • Ensure physical distancing and face masks.

  • Pay for masks and/or face shields for their employees.

  • Clean in-use spaces frequently and provide employees with time and equipment to clean in-use spaces.

  • Perform and document a written risk assessment, getting employee feedback on the questions.

  • Create, document and disseminate an infectious control plan.

  • Implement COVID related trainings and request employee feedback on the trainings.

  • Comply with and ensure employee compliance with quarantine and isolation protocols.

  • Allow remote work when suitable and possible for employees complying with isolation and quarantine protocols.

  • Ensure that adverse action is not taken against employees complying with quarantine or isolation protocols and return employees to their previous duties if still available.

  • Comply with heightened requirements for high exposure industries. See guidance for list of requirements and industries.

The Workplace Fairness Act took effect on October 1, 2020.

  • Employers are required to update their employment policies to include certain discrimination and harassment reporting obligations and definitions, an updated statute of limitations related to discrimination claims, new prohibitions against certain types of settlement agreements and to put up new posters. 

  • Employer should consider highlighting what resources are available for employees experiencing discrimination or bias in the workplace, what action will be taken in response to the complaint, and how sensitive information disclosed by employees will be handled.

  • Employers should make sure to clarify who is required to report discrimination (likely management, parties designated to receive reports, and supervisors) and who is encouraged to report discrimination. This distinction is important to clarify in your policies and to communicate to your workforce so they understand their reporting obligations.

  • It is critical that employees are encouraged to report and that they understand how to do it; it is also critical that employees understand when information will get reported to management and will result in action by the company.

  • When updating discrimination policies, it is important to consider state and federal legal obligations, the training required to effectively implement the change and other policy changes that may be required (for example, updating your record retention policies in light of the extended statute of limitations).  Federal guidance must be incorporated into updated discrimination policies.

  • Updating your discrimination policies is a good opportunity to highlight for your workforce the efforts you are taking to build a more robust anti-discrimination process. It is also an opportunity to train your supervisors and employees on other discrimination, equity and inclusion policies, procedures and best practices and to highlight other work that you are doing to promote equity and inclusion in the workforce and/or the community.