COVID-19: Safe Workplace Rules for Essential Employers

Governor Lamont Issues Executive Order No. 7V Requiring Essential Businesses and Nonprofits to Comply with New Safe Workplace Rules for Essential Employers

By: Kyle McClain

April 8, 2020

Last night, Governor Lamont released Executive Order No. 7V which, among other orders including modification of certain licensing requirements in the healthcare sector, directed “[e]very workplace in the State of Connecticut shall take additional protective measures to reduce the risk of transmission of COVID-19 between and among employees, customers, and other persons such as delivery drivers, maintenance people or others who may enter the workplace.” In furtherance of that directive, the Governor ordered the Commissioner of Economic and Community Development to issue “legally binding statewide rules prescribing such additional protective measures” which “shall be mandatory throughout the state, for essential businesses and nonprofits and any other business or nonprofit permitted to operate, and shall supersede and preempt any current or future municipal order [except Executive Order No. 7S and the DECD’s “Safe Stores” rules].” The Executive Order is available here. Immediately upon the signing of the Order, the Department of Economic and Community Development (“DECD”) published “Safe Workplace Rules for Essential Employers” on its website (available here). If you operate an essential business or non-profit (as previously identified per Executive Order No. 7H previously), there is no substitute for reading the rules themselves. 

The Safe Workplace Rules for Essential Employers are set forth in bullet point format, and organized into 7 sections with the following headings:

    • General;
    • Controlling contact between employees and other employees or customers;
    • Eliminating transmission points;
    • Guidelines for essential employees;
    • Guidelines for employees who had close contact with a person with symptoms of or have been diagnosed with COVID-19 (underlined by the DECD for emphasis);
    • Guidelines for workplace illness; and
    • Additional rules specific to construction sites.

The bullet points range from recommendations to apparent mandates. For example, the very first rule provides that “[e]ssential employees who are able to work from home SHOULD BE WORKING FROM HOME.” The key word there is, of course, “should” (rather than the words “shall” or “must” which do not appear anywhere in the rules), and other rules use non-mandatory terms like “recommended” (e.g., “For employees who have traveled internationally in a region where COVID-19 is active, or have returned from a cruise, it is recommended to stay home and self-monitor for fourteen days, subsequent to returning.”), “discourage” (e.g., “Discourage carpooling.”), “where practical” (e.g., “Deliver services remotely (e.g. phone, video, or web) where practical.”), and “when possible” (e.g., “Deliver products through curbside pick-up or delivery when possible.”).

As noted above, mandatory words like “shall” or “must” do not appear in the rules, but the absence of non-mandatory language in many of the bullet points seemingly requires strict compliance. For example, one bullet point under the “Controlling contact between employees and other employees or customers” heading reads: “Eliminate in-person meetings.” If these rules are “legally binding” as Executive Order No. 7V reads, then it would seem that all in-person meetings in the workplace are now prohibited.

Falling somewhere in the middle between recommendation and mandate are seemingly mandated practices with an element of subjectivity and thus, the ability for management to exercise discretion in implementation. For example, the third bullet point under the “General” heading reads: “Eliminate all non-essential workplace travel,” which reads as a requirement. What qualifies as ‘essential’ as opposed to ‘non-essential’ workplace travel, however, is not defined and thus, can presumably be determined by the employer.

The seemingly non-discretionary required practices set forth in the rules are:

    • Eliminate all non-essential workplace travel.
    • Distribute summaries of health insurance processes and procedures to employees.
    • Control access to external visitors including:
      • Prohibiting entry into the facility for non-essential visitors.
      • Interviewing approved visitors about their current health condition and recent travel history.
      • Using hand sanitizer at point of entry to the facility.
    • Eliminate in-person meetings.
    • Discourage carpooling.
    • Provide masks wherever close personal contact is unavoidable.
    • Increase physical space between employees and customers (e.g., drive through, Plexiglas partitions).
    • For workplaces with multiple shifts, provide time between each work shift to avoid overlap and allow for cleaning of the work environment at regular and appropriate intervals.
    • For workplaces with multiple shifts, stagger shift start/stop times, break times, and lunchtimes to minimize congregations at the time clocks or break areas.
    • Frequent cleaning of all touch points.
    • Secure all secondary doors and access points to minimize incidental contact.
    • To disinfect surfaces, use products that meet EPA’s criteria for use against SARS-Cov-2 and are appropriate for the surface.
    • If a sick employee is suspected or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations.
    • Make hand sanitizer available to employees who do not have ready access to soap and water.
    • Place posters that encourage hand hygiene to help stop the spread at the entrance to your workplace and in other workplace areas where they are likely to be seen.
    • All “Guidelines for employees who had close contact with a person with symptoms of or have been diagnosed with COVID-19.”
    • All “Additional rules specific to construction sites.

Although the Governor has ordered these rules to be “legally binding,” exactly how they might be monitoring or enforced is unknown. Under the circumstances, as has been the case with many COVID-19 related requirements, directives, and guidance, it is reasonable to expect that employers who have used their “best efforts” to implement all required practices “to the extent practicable,” along with the recommended rules/practices, will not face adverse consequences given the circumstances, but that cannot be guaranteed. Therefore, employers should do their best to implement the rules/practices, if they haven’t already–as soon as possible.

The information contained in this post is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice. Any specific questions about this information should be directed to Attorney Kyle McClain.

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