Risky Business

Risky Business

Employers will face challenges managing workplace risks as Tennessee’s economy reopens in the coming weeks.

by scott barker • April 22, 2020
West Town Mall has been closed since March 18.

Gov. Bill Lee’s decision to begin a phased reopening of the state’s economy beginning next week was welcome news for the business community, which has been devastated by mandatory closures as part of the coronavirus response.

Workplace safety is one of many considerations employers will face when managing risks as they reopen following mandatory coronavirus-related closures.

But business owners and corporate executives will face more new challenges when work resumes. Though Lee hasn’t provided explicit details about when specific industries will gear back up, he has been adamant that social distancing restrictions, including the prohibition of gatherings of more than 10 people, be maintained.

Locally, Dr. Martha Buchanan, director of the Knox County Health Department, drove the point home Tuesday during her daily media briefing. “It’s important that everyone understand reopening is not a return to pre-pandemic levels of activity and physical closeness,” she said.

Matthew Murray, an economist who is director of the Howard H. Baker Center for Public Policy at the University of Tennessee, said reopening the economy in the absence of a vaccine, which most experts say won’t be available before next year, is a potentially dangerous gamble. A resurgence of cases is possible.

“If the spread accelerates, we will confront another shutdown,” he said.  “Even absent public policy, people will choose not to shop, businesses will remain closed or restrict their access and hours, and workers will choose not to go to work.”  

While masks, widely spaced dining tables and possibly limits to the number of patrons entering retail stores to mitigate health risks might be more visible, behind counters and in executive suites much of the focus will turn to managing financial and legal risks.

“I think the crisis imposes an even greater need for employers to engage in solid risk management practices regarding the workplace,” said Alex Long, an employment law scholar and Williford Gragg Distinguished Professor and at the UT College of Law.  

“There are a host of issues employers need to consider from an employment law perspective as they prepare for employees to return to work. But one of the biggest is workplace safety,” he said. 

The Occupational Safety and Health Act (OSHA) contains a General Duty Clause, Long said, which requires that every employer provide a workplace free from “recognized hazards that are causing or are likely to cause death or serious physical harm” to workers. 

While there are some industry-specific safety standards, like personal protective equipment for healthcare workers, the law imposes the duty to provide a safe working environment on every employer. “That is going to be a huge issue moving forward,” Long said.

He said some employers might stagger clock-in times at factories and other workplaces that use time clocks or stagger work schedules completely. Companies might also spend more money making sure their workplaces are clean.

Employers who violate the General Duty Clause are subject to fines. The Washington Post found that more than 3,000 complaints related to the coronavirus were filed with the Occupational Safety and Health Administration from January through early April. 

Social distancing requirements, in comparison, could be self-regulating. “I think many if not most businesses will comply,” Murray said. “Consumer and worker pressures will add to their need to do so. But some will not, and that presents a risk especially for larger gatherings.”

Long said employers face plenty of other issues as well — workers’ compensation claims arising from exposure to COVID-19 and increased requests for medical leave, for example. 

OSHA requires that employers document COVID-19 illnesses among employees. Long said businesses need to have plans in place to keep workers apart from one another and to keep the workplace clean. That’s especially true, he said, because businesses also owe their customers a duty of reasonable care.

“So, if, for example, an employer is not exercising reasonable care to keep the workplace clean and is not taking reasonable steps to lower the risk of infection among workers, the business runs the risk of a lawsuit by a customer who is exposed, as well as an OSHA violation or an increase in the number of workers’ compensation claims,” Long said.

Employers should encourage employees to seek testing for COVID-19 if they have symptoms, and have flexible leave schedules in place so that employees feel comfortable self-identifying if their tests come back positive, he continued.

“I think all employers — and in particular larger employers and those that run factories and similar workplaces — need to consider taking those sorts of measures,” Long said. “Putting aside the general health and safety concerns to workers, the liability issues are real. I imagine that OSHA is overwhelmed right now and can’t investigate every safety complaint. But it can investigate some.”

Lee has said rebooting the state’s economy would be gradual and deliberate to keep from causing a new wave of COVID-19 cases. The Baker Center’s Murray said it’s too early to tell if the governor’s decision is coming too soon. “It depends on the transmission rate between people, the scope of testing and the nature of business practice as the pandemic continues,” he said. 

Murray said it’s not too early for one prediction, however. “Business will never be the same, nor will the workplace,” he said. “A rather jarring change in practice is emerging over a very short window of time.”