Is Maryland Going to be the Next State to Enact COVID-19 Workplace Standards?

Josh SchmandJosh Schmand

Maryland may soon join Virginia and D.C. in establishing COVID-19 workplace safety requirements. The state’s House of Delegates and Senate recently passed the Maryland Essential Workers’ Protection Act, and it is awaiting approval from Governor Larry Hogan (even if Governor Hogan vetoes the Act, the legislature has the votes to override any such veto).

Under the new Act, each essential employer* must take certain actions related to occupational safety and health during an emergency. The requirements cover, not just for the current and ongoing COVID-19 pandemic, but also for any situation in which extensive loss of life or serious disability is threatened imminently because of exposure to a deadly agent (e.g. anthrax, Ebola, radiation, or chemical or biological agent capable of causing extensive loss of life or serious disability).

* Essential employers under the Act are any persons or entities identified by the Governor or a federal agency as critical to remain in operation, who employ essential workers. Essential workers are those individuals who perform work during an emergency that cannot be performed remotely or are required to be completed at the work site, and that the employer determines to be essential or critical to its operation.

More specifically, during an emergency, essential employers must:

  • Provide working conditions that comply with applicable safety standards by the relevant state or federal agencies;
  • Provide necessary safety equipment recommended for usage during the emergency, at no cost to essential workers;
  • Adopt, maintain, and post written protocols to ensure essential workers’ access to the applicable safety standards in effect;
  • Take proactive steps to minimize the risk of transmission, including paying for testing for the communicable disease; and
  • Report test results to the Maryland Department of Health, redacting any personal identifying information to protect the identity of the essential workers.

Essential employers will also be required to provide paid public health emergency leave, if the state or federal government provides funding that can be used for this purpose. Public health emergency leave will be allowed for essential workers to:

  • Isolate if they have been diagnosed with, or are experiencing symptoms of, the communicable disease that is the subject of the emergency;
  • Seek or obtain a medical diagnosis, preventative care, or treatment because they have been diagnosed with or are exhibiting symptoms of the communicable disease that is the subject of the emergency; or
  • Care for a family member who is isolating because of a diagnosis or symptoms of the communicable disease that is the subject of the emergency.

This leave will be in addition to any other leave or benefit, including Earned Sick and Safe Leave (see here for a primer for employers to comply with the Maryland Sick and Safe Leave Act).

Essential employers will be allowed to ask essential workers who use public health emergency leave to provide documentation of the need to use the leave. The Act will not require essential employers to compensate essential workers for unused public health emergency leave when the essential worker leaves employment.

The Act also provides that each essential worker has the right to refuse to perform assigned tasks and may not be discharged or otherwise discriminated against for filing a complaint or exercising rights under the Act.

Given the veto-proof margin of the vote on the Act, Maryland employers should either develop and implement or modify and update their COVID-19 workplace safety policies now to be ready when the Act becomes law.

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

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.