A Return To Work Doesn't Mean A Return To Normalcy

By: Molyneaux Insurance (Bronze Level Partner)

June 19, 2020


In just a few short months, COVID-19 has jeopardized the health of individuals and the global economy. But after weeks of shelter-in-place orders, some businesses are beginning to re-open as states start easing social distancing actions.

The federal government recommends a 3-phase plan, based on a downward trajectory of symptoms and cases, the ability of hospitals to treat patients without crisis care, and a robust testing program for at-risk health care workers. However, adoption and satisfaction of these criteria vary, as state and local officials may adapt the federal guidelines to local circumstances.

For businesses preparing to re-open or ramp-up, it’s important to understand a return to work is not a return to the status quo. It’s critical to work with state and local officials to develop a comprehensive return to work plan that adheres to official guidance.

In addition to implementing enhanced safety measures, employee benefits compliance continues to evolve.


OSHA Updates Coronavirus Safety Enforcement Policies

The Occupational Safety and Health Administration (OSHA) announced the following revised policies for enforcing OSHA’s requirements concerning coronavirus:

  • OSHA will return to in-person inspections in many workplaces now that personal protective equipment is more widely available. OSHA staff will prioritize COVID-19 inspections and will use all enforcement tools as OSHA has historically done.
  • Under OSHA’s recordkeeping requirements, coronavirus is a recordable illness. Employers are responsible for recording confirmed cases of the coronavirus that are work-related and involve general recording criteria, such as medical treatment beyond first aid or days away from work.


Section 125 Midyear Election Changes

The IRS released guidance that provides temporary flexibility for midyear election changes under a Section 125 cafeteria plan during calendar year 2020. This guidance relates to midyear elections for health coverage, health flexible spending arrangements, and dependent care assistance programs. Employees may be permitted to prospectively make election changes described in the notice, regardless of whether they satisfy existing midyear election change rules.


Americans with Disabilities Act (ADA)

Employers must follow ADA rules while observing emergency guidelines issued by federal, state, and local health authorities during the pandemic. Recent Equal Employment Opportunity Commission guidance clarifies that employers may:

  • Ask employees if they have COVID-19 symptoms;
  • Require employees to stay home (and to provide medical notes before returning to work) if they have COVID-19 symptoms; and
  • Screen applicants for COVID-19 symptoms after making conditional job offers.


Families First Coronavirus Response Act (FFCRA)

The FFCRA enacted two laws that provide workers with paid leave for reasons related to the coronavirus (COVID-19) pandemic.

  • The “Emergency Family and Medical Leave Expansion Act” allows 12 weeks of partially compensated FMLA leave to care for a child whose school or child care facility has been closed due to COVID-19.
  • The “Emergency Paid Sick Leave Act” requires employers to provide 80 hours of paid sick time to employees in specified circumstances related to COVID-19 exposure and prevention.


Employer Liability Issues

As employees and consumers return to work and businesses, there is increased legal risk. For example:

  • Workers’ compensation claims or lawsuits filed by employees who test positive for COVID-19.
  • Lawsuits filed by consumers who patronize a business and test positive for COVID-19.
  • Claims alleging wrongful termination could arise out of COVID-19-related downsizing.

Workers’ compensation is generally the remedy for employees that experience a work-related injury. To qualify, employees must prove the illness or injury is work-related; however, several states have created a presumption that COVID-19 is work-related for certain employees, such as health care workers and first responders.

Proving causation will be the primary hurdle for claims by employees or consumers. With community spread, pinpointing the specific source of infection may not be possible; however, businesses that willfully ignore guidelines or that have large outbreaks may be at a higher risk for claims. Risk will also depend on many factors, including jurisdiction and specific circumstances.

Every business has different needs and risk exposures. Reviewing your General Liability, Workers’ Compensation, and Employment Practices Liability insurance coverage with your insurance broker is a good first step in understanding your coverage.


Prepare Now to Stay Safe Later

Due to the nature of the COVID-19 pandemic, rules and regulations are continually changing. Review your insurance programs to ensure you are adequately covered and be prepared to change your business practices if needed to maintain safety and critical operations. For more information on how to keep your business, employees, and customers safe, contact an insurance professional at Molyneaux Insurance.