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Managing Risks In The New Phase of COVID-19.

Published in the November, 2020 PELRAS Municipal Reporter

Published on: Tue 17th Nov, 2020 By: Campbell Durrant, P.C.

As we move into the next phase of the COVID-19 pandemic, it is critical that municipal employers have updated policies and sound risk management strategies designed to keep the workplace as safe as is possible. This is particularly true as the United States experiences its first consecutive days of more than 100,000 new cases of COVID-19, even before entering the traditional flu season. Many municipalities did not adopt or have not revisited their COVID-19 policies and procedures since the early days of the pandemic. In order to successfully mitigate risk, municipal employers must review their policies to ensure that they are up to date, inform their employees of changes to the policies and hold employees accountable for policy infractions.

After months of stress caused by the uncertainty of COVID-19, many public managers and employees are exhausted. This fatigue can result in complacency about COVID-19 mitigation efforts and increase reluctance to enforce COVID-19 mitigation rules. While this fatigue is understandable, public managers must continue to model good behavior, require compliance, and remain focused on reducing the transmission of COVID-19 in the workplace. Each municipality should require its employees to inform a supervisor and/or human resources of COVID-19 symptoms before reporting to work or at a minimum immediately upon experiencing symptoms while at work. Steps should be taken to mitigate exposure in the workplace by requiring employees to stay at home if they are not feeling well.

Be prepared for employees to report their co-worker’s sneezes, coughs or other symptoms. A well-defined protocol for determining when to exclude an employee from the workplace will remove subjectivity and inform all employees that the municipality is actively attempting to mitigate COVID-19 workplace spread. Employers should be tracking paid leave that is taken pursuant to the Families First Coronavirus Act.

Each municipality should have an Americans with Disabilities (“ADA”) compliant face covering policy to outline the expectation of workplace conduct. Employees who do not follow the face coverings policy should be held accountable.

Social distancing also remains important for transmission reduction. Elevators, access points and shared workspaces are common features that pose social distancing challenges and increase the risk of COVID-19 transmission. Employees should be reminded of their obligations to maintain a social distance from their co-workers when possible.

A municipal employer may consider implementing staggered work schedules to minimize the number of employees entering and exiting buildings. Before implementing scheduling changes, be sure to consult with labor counsel to determine whether such changes require collective bargaining with impacted unions.

The Center of Disease Control and Prevention (“CDC”) and other public health experts also emphasize the necessity of handwashing and disinfecting surfaces. Does your municipality have a written cleaning protocol for employees to follow? What efforts, if any, are you taking to ensure that cleaning is being performed?

Combating COVID-19 related stress is more challenging. Employee Assistance Programs (“EAP”) can play a critical role in helping employees navigate these difficult periods. Employees have access to professional assistance from substance abuse counselors, mental health workers, and other services.

Employers should note that referring an employee to EAP may implicate the ADA. The ADA protects employees who either have or are perceived to have a disability, including a mental disability, from workplace discrimination. Taking adverse employment action, such as discipline, against an employee who refuses to utilize EAP services or who does not comply with treatment recommended via EAP may result in claims of disability discrimination based on a perceived disability. In addition, employers are obligated to engage in the interactive process with employees who have mental health issues to determine if there are reasonable accommodations that would enable an employee to perform the essential functions of his/her job. Whenever you are dealing with a situation that involves EAP or medical issues, it is wise to consult with labor counsel.

Due to the dramatic increase in remote work necessitated by COVID-19, every municipality should have technology policies which outline the expectations of employees while using employer devices or accessing its systems. More importantly, training employees to recognize phishing attempts commonly embedded in emails is critical to mitigating risk. Municipal employers should review their cybersecurity policies to ensure that they are up to date and provide clear guidance on the how employees are to utilize technological resources.