The "Protecting Businesses and Workers from COVID-19 Emergency
Most requirements on District of Columbia employers relating to COVID-19 have been imposed by Mayor Bowser's Executive Orders, but the District of Columbia Council recently approved legislation on this topic. The law is known as the Protecting Businesses and Workers from COVID-19 Emergency Amendment Act, Bill 23-870 ("Act").
While the Act passed by a comfortable majority (10-3 vote), dissenting Council Members argued that it unnecessarily wades into matters that the Mayor and DC health officials are effectively managing, and that the Mayor can issue new orders that fine-tune requirements as circumstances change. As a compromise, the Act provides that mayoral orders on personal protective equipment take precedence over the Act if the orders set stricter safety standards, policies, or protocols. Federal requirements, including OSHA standards, also preempt the Act if there is conflict between them.
The actions required by the Act to implement personal safety protections are minimal: employers must adopt and implement workplace protection policies to prevent transmission of COVID-19 in the workplace, and those policies must adhere to any and all mayoral orders. The only specific protection mentioned in the Act is social distancing. Most landlords have already implemented these measures in the common areas of office buildings, and many employers have added signage, rearranged workspaces, and taken other measures to comply.
If mayoral orders already require protective measures, what is the point of the Act? Employers now have a legal duty "to prevent
transmission of COVID-19 in the workplace." While other jurisdictions have passed or are considering legislation that would limit employer liability in the event a worker becomes infected, this Act appears to head in the opposite direction. Arguably, however, an employer's duty is limited to having workplace protection policies that adhere to mayoral orders. Specifically, the Act requires "policies to prevent transmission of COVID-19 in the workplace that adheres [sic] to the requirements" of mayoral orders. Employers accordingly can argue compliance with mayoral orders offers a safe harbor from liability to workers.
The Act does not require that employers put these policies in writing. However, because the policies could be used to
establish a potential defense to liability, we advise that employers document their policies. The policies should track and keep pace with mayoral orders on COVID-19. At present, all COVID-19 mayoral orders remain effective through October 9, 2020.
It is important to note that once an employer establishes workplace protections, their employees are entitled to enforce them. Accordingly, protection programs that are overly expansive and detailed may increase the risk of liability (see bulleted list of employee protections below). As with any policy, employers should only establish requirements that they are ready to enforce.
The Act increases employer litigation risk by including numerous legal protections. Employers may not take "adverse action" against a worker:
- for refusing to serve a customer or client who is not complying with the employer's workplace protections;
- for refusing to work within six feet of an individual who is not complying with the employer's workplace protections;
- for taking actions to secure any "right or protection" contained in the Act;
- for taking actions to "prevent or stop a violation" of the Act;
- because the employee tested positive for COVID-19 (unless the employee physically reported to the workplace after a positive test result);
- because the employee was exposed to someone with COVID-19 and needs to quarantine;
- because the employee is sick and is waiting for a COVID-19 test result; or
- because the employee is caring for or seeks to provide care for someone who is sick with COVID-19 symptoms or who is quarantined.
The Act further states that employers "may" establish a policy that requires workers to report "a positive test for an active COVID-19 infection." An employer may not disclose the identity of an employee who tests positive, except to the Department of Health or another appropriate District or federal agency. Employers may ban an employee who tests positive for COVID-19 from the workplace until either he has been cleared by a medical professional or has satisfied a quarantine period recommended by the Department of Health or U.S. Centers for Disease Control.
The Act includes an expansive definition of prohibited "adverse actions,"
including, for example, any disciplinary measures. Not paying an employee for time not worked due to any of the above situations presumably is not an adverse action, although the Act does not address that particular issue.
The Mayor may enforce the Act through investigations and hearings, and the Attorney General may do so through investigations and lawsuits. The Act does not however, give employees a private right of action and, in that respect does not permit employees to hold employers accountable in court for failing to establish or to abide by workplace protections. The Act does not reference the District's workers' compensation laws, and in that respect workplace injury
claims relating to COVID-19 remain subject to the exclusive remedy provisions of those laws.
Finally, the Act contains a few provisions intended to assist small businesses, such as in procuring personal protective equipment.
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This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.