Key Points about waivers, hazard pay, and complaints:
- Businesses are starting to reopen, but the risk of COVID-19 hasn’t gone away. When returning to work, your employees may express health and safety concerns.
- Notices, acknowledgements, waivers, and hazard pay are a few ways you can manage concerns and complaints. However, many experts are uncertain about how these processes will work in the era of COVID-19.
- Until further guidance is released, here’s what you need to know about managing concerns and complaints during a pandemic.
The risk of COVID-19 hasn’t decreased, yet life is slowly returning to a version of normalcy. Businesses are starting to reopen and many employees are headed back to a physical worksite. While a return to work is necessary for many businesses to stay afloat, it also opens the door for a variety of employee health and safety concerns.
To address these concerns and possible complaints, many employers are considering hazard pay, waivers, and other accommodations. But COVID-19 is a recent development. As such, the guidance surrounding these accommodations is uncertain. This blog outlines expert opinions and current best practices to help you manage safety complaints in the workplace.
The key to managing health and safety concerns is to reduce as many risks as possible. First, assess whether your business needs to resume in-person operations. If your employees are able to work remotely without any issues, it’s safest to continue this setup for now.
If you need to physically return to work, develop a Return to Work policy. This should detail your response to COVID-19 and how you plan to resume operations safely. A comprehensive plan will include sanitation measures, social distancing guidelines, Personal Protective Equipment (PPE) requirements, and compliance with Federal, state, and local guidance. As a last step, survey your employees to identify their major concerns. This will help you create a space where they truly feel safe.
If you employ frontline workers, you may have heard of COVID-19 hazard pay. Hazard pay is additional pay given to individuals who perform work with physical hardship or hazardous duties. Typically, miners, construction workers, and individuals in similar positions receive this compensation.
During a pandemic, workers on the frontlines also risk their health and safety when they go to work each day. Hazard pay is one way you can show your appreciation for those employees returning to work in such unusual circumstances. By compensating employees a little extra, you show them that you’re aware of the dangers they face and care for their wellbeing. Hazard pay can’t completely eliminate complaints, but it can reduce initial grievances.
Hazard pay is not mandated by the Department of Labor. It’s optional, even during the COVID-19 pandemic. You have the power to decide whether to offer it, which employees are eligible, and how much you will award. As long as your hazard pay doesn’t exceed 25% of an employee’s normal wage rate, you can pick any amount you like. If you need some guidance, there are several example policies online that can help you get started. This example from SHRM is just one approach you can take.
Please note: If you received funding from the PA Hazard Pay Grant Program, you will need to adhere to that program’s guidelines regarding your policy and how you distribute the funds.
Notices, Acknowledgements, and Waivers
If you can’t provide hazard pay (or even if you can), you may be considering notices, acknowledgements, and waivers. Many employers are using these documents to reduce their liability for COVID-19 risks.
However, experts don’t know how enforceable these documents actually are. Most agree that their protections are limited to specific situations. Federal, state, and local laws also have the ability to overrule them. So, are they actually useful for managing concerns and complaints? It depends on the document and your unique situation.
Written notices outline the precautions you’re taking during the pandemic. They help make employees and clients aware of your standards and what they need to do to comply with them. Most experts agree that there’s no downside to displaying these notices around your workplace. They don’t really offer liability protection, but they can promote safety awareness.
When writing your notice, be sure to include the appropriate disclaimers. For example, you should note that your safety measures are not diagnostic. You cannot guarantee that everyone who enters your workplace is COVID-19 free. Likewise, you cannot completely eliminate the risks of contracting or spreading the disease.
Acknowledgements ask your employees to understand and comply with your return to work and safety policies. Most experts say that no harm can come from getting written consent from your employees. Others take this a step farther, arguing that acknowledgements are unnecessary unless required by state or local law. According to them, employers don’t need employee consent to protect their workplace. This includes implementing safety procedures during a pandemic. Employees always have the right to refuse temperature checks or questionnaires. But employers also have the right to deny them entry to the workplace if they fail to comply.
Ultimately, if your local or state laws require acknowledgements, you’ll need to use them. But if they aren’t required, the decision is up to you. They may not be necessary, but they’re another way to ensure your employees are aware of your policies and what they need to do.
Waivers aim to reduce an employer’s liability for COVID-19-related risks. Right now, many employers are asking employees and customers alike to sign them. However, waivers are only enforceable in specific situations. Whether a waiver can actually offer you protection depends on your specific situation and any relevant state and local laws. They may offer limited protection from negligence claims. But they can’t protect you from gross negligence or willful conduct. They also cannot overrule workers’ compensation statutes or OSHA complaints and investigations. And if your business fails to comply with OSHA and CDC regulations and Federal, state, and local COVID-19 guidance, you’re likely still liable even if your employees sign a waiver. In Virgina, Louisiana, Montana, and Connecticut, waivers are not even enforceable contracts.
Some experts point out that waivers can have a negative impact on your employees. They may make employees reluctant to return to work. Because their enforceability is limited anyway, waivers may not be worth the potential hit to employee morale. Other experts note that although their protections are limited, waivers can act as a deterrent for employees who wish to file complaints or pursue legal action. Speak with your legal advisor to learn more about waivers and whether they can help you.
Coronavirus cases spike and fall, legislation changes, and new guidance arrives on a weekly basis. As a result, your return to work may not be perfect. Even if you provide hazard pay and comply with all guidance, you may still receive health and safety complaints from employees.
How you handle these complaints will show your employees how much you value their health and safety. Your response can reduce their fears or add to their worries. So whether the complaint is official or unofficial, it’s important to take it seriously.
Under OSHA guidance, you’re responsible for providing a workplace that is safe and hazard-free. OSHA has released additional recommendations for keeping workplaces safe during the COVID-19 pandemic. If one of your employees feels that your workplace is not safe, they may file an official OSHA complaint. Hopefully this never happens to you, but if it does, here is what to expect:
- First, OSHA will evaluate the employee’s complaint to ensure that there are “reasonable grounds to believe that a violation of an OSHA standard or a safety or health hazard exists.” Based on the severity of the complaint and other factors, OSHA will proceed with an off-site or on-site investigation.
- If the complaint does not detail imminent danger, OSHA will likely proceed with an off-site investigation. A representative will call you and outline the hazard complaint, then follow up with a fax or letter.
- You have 5 days to respond to OSHA. Identify any problems or issues found at your workplace, and note the corrective safety procedures you will take to remove them.
- If your response is adequate, OSHA will not conduct an on-site inspection. However, if you don’t respond (or if your response has a glaring non-safety measure), OSHA may conduct an on-site inspection. Likewise, if the complainant is not satisfied with your response, they can request an on-site inspection.
Unless there is an immediate threat, on-site investigations are fairly rare. Regardless, if you receive an official complaint, take the time to develop a response that re-prioritizes the health and safety of your employees.
Employees may voice their health and safety concerns unofficially, too. Maybe someone tells you that their coworker isn’t wearing a protective face covering. Maybe someone is concerned over the lack of sanitation tools.
These aren’t formal complaints, but you should still investigate them. Do what you can to eliminate those concerns. If necessary, remind your employees of your policies and that disciplinary action may follow if they fail to comply.
Whether it’s hazard pay, waivers, or something else, managing health and safety concerns during a pandemic is complex and uncertain. Unfortunately, there’s no way to completely eliminate employee concerns or complaints. There will always be some risk.
Similarly, the current state of the world has many people feeling stressed and frustrated. Your employees may express concerns and complaints simply because they have no other outlet right now. The only thing you can do is comply with all guidance, follow best practices, and make sure employees feel safe when they come in to work.
It’s important to note that this information may change with additional guidance from Federal, state, or local entities. As of now, there is no formal guidance, although new laws are being proposed to limit the liability of employers who follow all Federal, state, and local regulations. Under these laws, employers would be protected from COVID-19 lawsuits (as long as they’re compliant with all safety procedures).
If you need additional help with COVID-19 guidance, Sentric can help. Download our Employer’s Interactive Guide to COVID-19 Legislation, which has everything you need to stay on top of the latest changes.