U.S. Businesses Could Face COVID Mandates

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In addition to damage it has done to demand for many types of products, the coronavirus pandemic has hampered business by saddling them with a range of concerns about how to keep employees safe while continuing to operate.

In the United States, there also looms a possibility that protective guidelines could turn into regulations backed by threat of penalties, a legal advisor told a Petroleum Packaging Council audience last month.

“It creates a lot of uncertainty and makes it difficult for many different businesses that have a lot of things on their plates right now,” Jeffrey L. Leiter, the organization’s legal counsel, said during a Sept. 15 webinar.

Since the COVID-19 pandemic flared, governments around the world have taken varying approaches to locking down society in efforts to contain the disease’s spread. In the U.S., states have made choices about how much to restrict business and other activities, while the federal agencies have issued guidelines for employers and individuals to prevent transmission.

The Occupational Safety and Health Administration has given a series of guidance to business as authorized under the Occupational Safety and Health Act of 1970, which requires employers to furnish workplaces that are free from hazards likely to cause death or serious harm. Though sometimes varying between industries, that guidance has prescribed procedures for ensuring social distancing and sanitizing workplaces and instructed in the use of equipment such as masks, gloves and respirators.

It also addresses how to handle situations where protective equipment could pose safety hazards due to conditions in certain workplaces, Leiter said. OSHA also provided principles on issues such as how to determine whether an employee’s fear of reporting to work constitutes an excusable reason for them not work but still receive compensation.

And the agency gave guidelines for how all of those policies should be communicated across the workplace and how to provide any coronavirus related training that employees needed.

Under President Donald Trump’s administration, the federal government has generally taken a benign approach to requiring business to follow OSHA’s guidelines. If businesses could show that they had made a good faith effort to follow the agency’s directives, then regulators refrained from penalizing them.

However, state governments – at least some of them – appear inclined to take harder stances, Leiter said. He noted that Virginia became the first state to turn such guidelines into mandates when it implemented a temporary emergency standard at the end of July. “The masks and social distancing, hand hygiene procedures, frequent cleaning of surfaces became ‘you must’ instead of ‘you may,’ ” Leiter said.

Under its provisions, the state can close a business found not to adequately follow the rules. Leiter said many business owners consider it unfair to face such risks during such difficult times.

“They’re like, we made a good faith effort to comply, to keep the doors open so people could keep working, and you’re going to do this to me?” He noted that Virginia has discussed the possibility of making its standard permanent and that a number of other states are moving toward adopting similar rules.

“We’ll see this trend likely to continue into next year,” he said.

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