HR REPORT: Workplace Safety in the COVID-19 Era

Mark Broth, Esq. and Anna Cole, Esq.

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Over the past several months, our nation has seen a drastic shift in “normal” life and commerce.  While many private entities have transitioned to a work-from-home model in an effort to protect their employees, much of the work performed by our dedicated public servants must be done in person – the police department continues to patrol, the fire department continues to respond to calls, the highway departments continue to maintain our roads, the transfer station continues to process recycling and refuse, the building inspector continues to review and authorize construction, the code enforcement officer continues to enforce our local regulations – the list could go on and on.  

As public employees continue to report to work, our municipalities are required to comply with best practices – ever changing as they may be – to provide their employees with a safe work environment.  As outlined in New Hampshire’s workers’ compensation statute, “[s]afe employment includes but is not limited to furnishing personal protective equipment, safety appliances and safeguards; ensuring that such equipment, appliances, and safeguards are used regularly; and adopting work methods and procedures which will protect the life, health, and safety of the employees.”  This obligation has become front and center in the wake of the coronavirus pandemic. 

The meaning of “safe” work practices is heavily dependent on the context for the work being performed.  The personal protective equipment needed for police or fire personnel who must enter a private home is different from the equipment needed to make your dispatchers safe at the department.  Where feasible, many of our towns, cities, and counties have expanded their telecommuting policies to allow more employees to perform their work remotely.  When this is not possible, public employers have adopted safe work practices consistent with federal and state guidance such as social distancing measures, use of personal protective equipment such as masks, and robust disinfecting routines for common use areas and employee workspaces.  Once established and communicated to staff, these safe work practice policies and rules should be mandatory.  Simply put, PPE and other safe work practices keep others safe from you.  No employee has the right to engage in workplace behaviors that puts the health and safety of other employees at risk.  Employers have the right and the legal obligation to adopt and enforce policies intended to keep employees safe.  Employees should understand that failure to comply with reasonable safety policies will result in discipline up to and including termination. 

In addition to instituting safe work practices for their employees, public employers should consider extending the culture of safety to those individuals who come on Town property.  Consider the community function of Town spaces and establish protocols that help your citizenry want to cooperate with the safety measures established on Town property – consider signs such as “Our employees are taking care of you – help us take care of them and: * stay back at least 6 feet * hold necessary documents up to the plexi-glass *wear a mask, etc.” or “Help keep us open – Please: . . .”  The goal is to help the public remember that all Town employees have been identified as essential workers who have carried out their duties throughout this crisis.  The public can show their appreciation for the efforts of these individuals by enduring the minor inconvenience of social distancing and PPE while interacting with Town employees.

As we continue to adjust to the changing landscape of the pandemic, employers must remain informed on the most up-to-date best practices as recommended by the CDC, DHHS, and other state and federal agencies.  Your policies should include a nimble process to allow modification of safe work practices as the guidance changes in light of new information. 

Mark Broth and Anna Cole are members of Drummond Woodsum’s Labor and Employment Group.  Their practiceS focus on the representation of private and public employers in all aspects of the employer-employee relationship.  This is not a legal document nor is it intended to serve as legal advice or a legal opinion.  Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2020 Drummond Woodsum.  These materials may not be reproduced without prior written permission.”