Failure to train workers on COVID-19 could lead to fines, lawsuits

As the pandemic rages on, more states are creating their own standards requiring employers to provide workers with proper COVID-19 training to prevent transmission of the virus, and failure to comply with these measures in some jurisdictions can lead to substantial fines, experts say.

Sixteen states — either by way of passage of an emergency temporary standard or a gubernatorial executive order — now require employers to train their workers on COVID-19 workplace safety protocols. While most training requirements include basics such as social distancing and hand hygiene, some of the more robust training rules could cause headaches for multistate employers, experts say.

“Every state enforces things differently and has a different penalty structure,” said Jonathan Snare, Washington-based partner at Morgan, Lewis & Bockius LLP and head of the firm’s occupational safety and health practice. “A lot of employers are already doing some type of hazard assessment. … The question is the need to double-check requirements in (states with an emergency temporary standard), both from a regulatory compliance standpoint as well as making sure they’re training their employees. It has been a big issue.”

While the majority of training requirements were issued via executive orders, three states —Michigan, Oregon and Virginia — have created COVID-19 emergency temporary standards, which are effective for 180 days but can be extended.

Virginia’s Safety and Health Codes Board approved the first emergency temporary standard on July 15; it took effect in late September.

Under all three standards, employers must provide training on coronavirus physical distancing requirements; face coverings and sanitation; safe and healthy work practices and control measures; knowledge of the ability of asymptomatic individuals to transmit coronavirus; COVID-19 signs, symptoms and reporting procedures for the workplace; and quarantining/isolating requirements.

Virginia also requires employers to maintain written certification for each employee who received training that includes the date of the training, the signature of the employee who received the training, the name of the person who conducted the training and the author of the training materials. The standard allows for fines up to $12,726 for serious violations of the standard and up to $127,254 for willful violations, which the U.S. Occupational Safety and Health Administration describes as violations of workplace rules and policies that are done either deliberately or as a result of neglect.

Michigan’s emergency temporary standard, went into effect Oct. 14, requires that training be conducted in the primary language of the employee population.

Under Michigan law, emergency rule violators can face fines ranging from $7,000 for a serious violation to $70,000 for a willful violation.

Oregon’s COVID-19 emergency temporary standard, which took effect Monday, requires that employers provide workers with training no later than Dec. 21. It also mandates that workplaces deemed to be at “exceptional” risk conduct training “live” to allow workers to ask questions and receive immediate answers. The standard does not list fines, but the state’s OSHA has been issuing employers fines of up to $2,000 for serious COVID-19 violations and up to $14,000 for willful violations.

California’s Occupational Safety and Health Standards Board will vote Thursday whether to adopt an emergency temporary standard, which has requirements similar to the other state standards. If adopted, the standard will go to the administrative law office for review.

Small and mid-sized businesses without a safety officer or a health and safety point person may struggle to comply with such measures, said Jane Terry, vice president of government affairs at the National Safety Council.

“The regulations and requirements are going to vary state by state” and multistate employers should check in with legal counsel and the local chamber of commerce, and talk to other businesses to make sure they’re following the guidance in the states in which they’re operating, Ms. Terry said.

Despite this challenge, she said employers “like the certainty of knowing” exactly what the expectations are regarding keeping workers safe and healthy and complying with the law. “These types of actions by states can help provide that clear direction for those employers,” Ms. Terry said.

Many employers, particularly those with a workforce spread across the country, may not know what the COVID-19 training requirements are in specific states, said Michael Johnson, CEO of Arlington, Virginia-based Clear Law Institute, which provides online compliance training.

Failing to comply with those training requirements can open up a company to fines, and even worse, a lawsuit, Mr. Johnson said.

Those that fail to provide training also reduce their defense in lawsuits, Mr. Johnson said.

Lawsuits for coronavirus-related wrongful death, negligence and intentional infliction of emotional distress, citing lack of training among other issues, are being filed, he said.

This article was first published in Business Insurance.

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