COVID-19-Related Workplace Safety Training Rules and Recommendations

Sixteen states now require employers to provide COVID-19 workplace safety training to employees. Even in states where training is not explicitly required, employers should consider providing COVID-19 workplace safety training to all employees that is consistent with guidelines from the U.S. Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA).

Employers that provide up-to-date training can demonstrate their concern for employee safety and minimize the risk of government enforcement actions, workers' compensation liability and employee litigation.

Here's what employers need to know about developing a workplace safety training program during the coronavirus crisis.

States' Requirements Vary

Each of the 16 states that require training has distinct content mandates. For instance, Michigan requires that training include instructions on how employees can report unsafe working conditions. Training in Virginia must include information about the state's anti-retaliation provisions. 

California requires training to provide information on paid-leave benefits, as well as a lengthy list of workplace hygiene practices and cleaning protocols. Maine requires training only for employers in certain industries, such as retail, lodging, restaurants and fitness centers.

Workplace Safety Enforcement

Even if an organization does not operate in a state that expressly requires COVID-19 workplace safety training, prudent employers should provide employee training on these critical safety matters.

The Occupational Safety and Health Act and related state laws require employers to provide a workplace free from known hazards that are likely to cause death or serious physical harm.

Workplace exposure to COVID-19 can be a considerable workplace hazard, depending on the setting and job tasks. For example, exposure to the virus is a significant hazard for workplaces or job tasks that require frequent physical interaction with the public or with other employees.

Federal and state agencies can impose significant penalties when an employer fails to implement the safety measures needed to mitigate these workplace hazards. In determining compliance, these agencies often defer to federal and state workplace safety guidelines. In fact, OSHA's COVID-19 enforcement guidance instructs compliance officers to consider CDC guidance when conducting workplace safety inspections. Both OSHA and the CDC advise employers to provide employee training on the most current safety guidelines to minimize workplace exposure to COVID-19.

Recently, the Michigan Occupational Safety and Health Administration (MIOSHA) issued citations to various businesses for noncompliance with the state's COVID-19 workplace guidelines, amounting to tens of thousands of dollars in penalties. MIOSHA issued several citations to businesses because they did not provide the required workplace safety training to employees or did not include all the required content in the training they provided.

Rhode Island has similarly issued compliance orders to businesses for noncompliance with its COVID-19 Emergency Rule. Virginia intends to hire nearly 100 employees to respond to hundreds of noncompliance complaints under its COVID-19 Emergency Temporary Standard. Like Michigan and Rhode Island, Virginia mandates COVID-19 workplace safety training with specific elements.

These recent enforcement activities highlight the importance of providing COVID-19 workplace safety training that is fully compliant with the various state training mandates.

Workers' Compensation Claims

Workers' compensation typically does not cover claims based on viral infection because it is difficult to prove the infection occurred in the workplace. The COVID-19 pandemic has challenged this widely accepted rule, prompting 14 states to extend workers' compensation coverage to cover COVID-19-related illness. Wyoming grants coverage to all employees, while many other states limit coverage to essential workers. Several states have legislation currently pending that would create a presumption of coverage for any employee who contracts a Covid-19-related illness.

COVID-19 workplace safety training can reduce the potential for COVID-19-related illness by educating employees on hygiene, face-covering and cleaning measures needed to prevent the virus from permeating the workplace.

COVID-19 Workplace Litigation

Workplace litigation relating to COVID-19 has sharply increased, emphasizing the consequences for not educating employees on the most current safety measures necessary to minimize exposure to COVID-19.

Recent litigation involving several Chicago restaurants illustrates this point. In this case, five employees brought a lawsuit in a county circuit court against several restaurants in which they worked, claiming the restaurants acted negligently and created a public nuisance by failing to correctly train employees on social distancing and enforce face-covering mandates.

The employees properly showed that the possibility of COVID-19 infection and subsequent injury in the workplace was "highly probable," according to a Cook County circuit court. The judge issued a preliminary injunction ordering the restaurants to provide accurate employee training on social distancing and to enforce face-covering requirements.

Although some states have enacted legislation protecting certain employers from COVID-19 liability, many of these laws insulate employers from liability only if the employer can show it acted in good faith in accordance with federal, state and local guidelines.

Training Tips

To ensure compliance, COVID-19 workplace safety training should include:

• Up-to-date CDC and OSHA workplace safety protocols.
• Complete and accurate state-mandated training elements.
• Up-to-date state-specific workplace safety protocols.
• Industry-specific workplace safety guidance, if applicable.
• Employer workplace safety policies and practices.

In all states where an employer operates, an employer should:

• Monitor legal developments for new state training mandates.
• Consistently review and update training based on new or modified CDC and OSHA guidance and state orders, rules and guidelines.
• Maintain training records.
• Consider retraining employees when legal or medical guidance substantially changes.

Michael Johnson and Shannon Magill Farruk are attorneys with Clear Law Institute, a workplace training provider.