Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, authored an article in HR Dive, titled “Public-Facing Industries and COVID-19: How to Protect Workers and the Public.”
Following is an excerpt:
As the U.S. emerges from COVID-19 confinement, new concerns arise every day, especially for employers with public-facing services like many in the food and beverage industry.
So what are restaurants, supermarkets, bars and the like supposed to do?
Let’s start with the basics. Focus on the groups of people you need to protect (or be protected from) — your employees and your customers. As an employer, the Occupational Health and Safety Act of 1970 requires you to provide employees with a safe workplace. The Act’s General Duty Clause requires employers to furnish to each worker "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm."
That sounds reasonable, but what does it really mean in the COVID-19 era? To be candid, it is clear as pea soup. The General Duty Clause is a catch-all requirement and is used by the Occupational Safety and Health Administration (OSHA), among other times, when there are no controlling standards to enforce. COVID-19 is caused by a coronavirus called SARS-CoV-2 that is transmitted primarily through airborne transmission; but OSHA regulations have no "airborne pathogen" standard. The AFL-CIO recently sued the U.S. Department of Labor, OSHA’s parent, aiming to force the creation of an emergency rule for airborne pathogens, but a federal appeals court dismissed the case. Some in Congress have also called for a new standard, but the Secretary of Labor has repeatedly stated that OSHA has enough standards and regulations in place.
