The District of Columbia’s New COVID-19 Workplace Safety Requirements

Josh SchmandJosh Schmand

In February, in a continued effort to protect workers in the District of Columbia and to prevent the spread of COVID-19, the D.C. Council passed the Workplace Safety During the COVID-19 Pandemic Emergency Declaration Resolution of 2021. The Workplace Safety Resolution repeals, updates, and expands the previous Protecting Businesses and Workers from COVID-19 Temporary Amendment Act of 2020 and the Protecting Businesses and Workers from COVID-19 Congressional Review Emergency Amendment Act of 2021.

Employer Policy Requirements

Previously, employers in the District had to comply with the Mayor’s mask orders, but not other orders pertinent and critical to workplace safety that address social distancing, personal protective equipment (PPE), or other such measures. Effective immediately, the Workplace Safety Resolution requires D.C. employers to adopt and implement social distancing and workplace protection policies to prevent the transmission of COVID-19 in the workplace.

While “workplace” means any physical structure or space where an employee performs work, it does not include the home or other location where an employee teleworks that is not subject to the employer’s control. For the Workplace Safety Resolution to apply, the employer must maintain control of the physical structure or space.

The Mayor may publish a notice of the relevant portions of the Workplace Safety Resolution, and if/when that happens, employers will have to post the notice in a conspicuous location in the workplace in English and any other language spoken by at least 10% of employees.

Employer Reporting Requirements

D.C.’s Workplace Safety Resolution requires employers to report instances of their employees contracting COVID-19 in the course of and within the scope of their employment, or whose contact with others in the course of and within the scope of their employment makes the contracting of COVID-19 probable, to the Mayor. Reports can be made here, and additional guidance on when to report can be found here.

Employers in D.C. may require their employees to report a positive test for COVID-19, but the Workplace Safety Resolution prohibits employers from disclosing the identity of their employees who test positive, except to the Department of Health (DOH) or as otherwise required by law.

Additionally, employers must cooperate with contact tracers, including by providing information about employees who were in close proximity to infected employees and by providing customer lists and contact information as requested.

Employee Protections

The Workplace Safety Resolution prohibits employers from retaliating or taking adverse employment actions against employees for:

  • Complying, or attempting to comply, with the requirements of a Mayor’s Order related to the public health emergency;
  • Reasonably attempting to prevent or stop a violation of a Mayor’s Order related to the public health emergency;
  • Submitting a complaint to the Mayor or the Attorney General about a violation of the Workplace Safety Resolution;
  • Raising reasonable concerns about workplace health and safety practices related to COVID-19; or
  • Testing positive for COVID-19, having close contact with someone with COVID-19 or experiencing symptoms, needing to quarantine in accordance with DOH or U.S. Centers for Disease Control and Prevention (CDC) guidance, experiencing COVID-19 symptoms and awaiting a test result, or caring for someone who is sick with COVID-19 symptoms, provided that the employee did not physically report to the workplace within appropriate timeframe recommended by current DOH or CDC guidance.

Prohibited adverse employment actions include a threat, verbal warning, written warning, reduction of work hours, suspension, termination, discharge, demotion, harassment, material change in the terms or conditions of the employee’s employment, or any other action that is reasonably likely to deter the employee from receiving the protections of the Workplace Safety Resolution.

Additionally, employers may not prohibit or discourage employees from using PPE or require employees to sign an agreement or comply with a workplace policy that would limit or prevent their right to disclose information about the employer’s workplace health or safety practices or hazards related to COVID-19.

Enforcement and Penalties

Both D.C.’s Mayor and Attorney General may receive and investigate complaints against employers who violate the Workplace Safety Resolution, to institute administrative or civil actions on behalf of the District against employers, and assess civil penalties. The Mayor’s office may post on the District’s Coronavirus website the name of each business for which a violation was found and a statement of the penalty imposed.

The Mayor may impose civil fines up to $1,000 per violation per employee per day for each violation of the policy and reporting requirements, and up to $2,000 per violation of the prohibited retaliation protections. The Attorney General, upon prevailing in an action against an employer, may recover up to the maximum amount of the civil fines for such violation, as well as (1) attorneys’ fees and costs, (2) restitution for lost wages, for the benefit of the aggrieved employees, and (3) other equitable relief as is necessary and appropriate.

In addition to the Mayor and the Attorney General, the Workplace Safety Resolution creates a private cause of action for violations of the prohibited retaliation protections. This means that employees may bring their own lawsuit against their employer, and, if successful, will be entitled to recover (1) attorneys’ fees and costs, (2) restitution for lost wages, (3) other equitable relief as is appropriate, and (4) punitive damages, if the employer acted with wanton or reckless disregard for the safety of the affected employee. And, unlike other employee claims against employers, under the Workplace Safety Resolution, employees need not exhaust administrative remedies before bringing suit.

PPE, Unemployment, and Workers’ Compensation

The Workplace Safety Resolution also addresses employer eligibility for grants for purchase or reimbursement of PPE, authorizes unemployment compensation for employees who voluntarily leave work due to an unsafe workplace condition, and extends workers’ compensation coverage to employees who contract COVID-19 in the course of and within the scope of their employment.

Takeaways

Employers in D.C. that have not already developed and implemented COVID-19 workplace protection policies need to do so without further delay. And, for those employers who already brought their policies, practices, and procedures into compliance with the prior workplace safety Acts, they now have to review and revise them to ensure compliance with the new Workplace Safety Resolution.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

What Should Employers Do About the COVID-19 Vaccine?

A Webinar featuring Employment Attorneys Marc Engel and Michael Neary

The COVID-19 vaccine raises many questions for employers. Should you mandate it? Should you recommend it? What policies do you need? 

Lerch Early employment attorneys Marc Engel and Michael Neary on February 11 presented a webinar on how employers should handle issues surrounding the COVID-19 vaccine and plan for the day when the vaccine is readily available.

To view the webinar on Zoom, click here. The passcode is #tFhB3O3.

The webinar was hosted by the Greater Bethesda Chamber of Commerce, the Greater Silver Spring Chamber of Commerce, and the Gaithersburg-Germantown Chamber of Commerce.

If you have any follow-up questions or comments, feel free to reach out to Marc at mrengel@lerchearly.com or Michael at mjneary@lerchearly.com.

Vaccines Eliminate Need To Quarantine For Period Of Time According To CDC

Michael NearyMichael Neary

The big news of the week for employers did not come out of the Department of Labor or Equal Employment Opportunity Commission. Instead, it came out of the Centers for Disease Control and Prevention (“CDC”). After much discussion and speculation in the public health community, CDC announced that asymptomatic fully vaccinated individuals need not quarantine after a subsequent COVID-19 exposure within three months of full vaccination. The CDC guidance is available here.

We all hope the time after full vaccination where an individual need not quarantine following a COVID-19 exposure will extend further if the protection from the vaccine is shown to last longer than three months.

The ramifications of this decision for employers cannot be overstated. Had CDC come down the other way, there was literally no end in sight to the social distancing measures employers have been diligently following in the workplace since the pandemic started. Part of the reason employers follow social distancing is to minimize spread. But another big reason for social distancing within workplaces is to avoid quarantining large segments of employees if one of them contracts COVID. That is because most people within six feet of a confirmed COVID positive individual for 15 minutes or more are subject to a government-mandated quarantine. CDC’s new guidance means that a vaccinated employee can continue to work even if there is a close contact exposure. Given the CDC guidance, the risk of having to quarantine large groups of employees for an exposure will fall as more of the workforce is vaccinated.

Employers should update their own quarantine policies to align with CDC’s updated guidance. And employers should institute robust programs educating employees about the COVID-19 vaccine and encouraging employees to get the vaccine when it is available to increase the number of employees vaccinated. Doing so not only protects your workforce, it also, given the new CDC guidance, minimizes the disruption a confirmed COVID positive case will have on your day-to-day operations.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

Managing Your Employees: What New and Small Businesses Need to Know

Michael NearyMichael Neary

Employment attorney Michael Neary presented to new and small business owners on January 19 about managing their employees. You can watch a recording of the presentation here:

Micheal touched on several important topics, including:

1.  Hiring Process and Accompanying Risks
2.  Registering Employees With the State
3.  Immigration Compliance
4.  Documenting Employment Relationship: Offer Letters, Contracts, Equity Grants
5.  Best Practices for Employer Policies
6.  Wage and Hour Issues – Employee/Independent Contractors
7.  Protecting Your Intellectual Property and Trade Secrets
8.  Workplace Health and Safety – COVID-19
9.  Insurance
10.  Benefits

You can find a copy of their presentation here: https://www.lerchearly.com/events/managing-your-employees-what-new-and-small-businesses-need-to-know

For more information, contact Michael at mjneary@lerchearly.com.