Returning to work in a new world

As you read this, perhaps your company and its individual operations have completed, or are well into completing, their return-to-work transition.

For most mining operations, there has not been much to transition. The Department of Homeland Security, and most states, rightfully declared that the mining industry is an essential industry, so most line production, maintenance and supervisory personnel have continued to work throughout the coronavirus crisis – albeit with major alterations to normal work procedures.

Social distancing requirements, facemasks, frequent hand hygiene, staggered start times, employee screening and visitor access restrictions have all become standard features of the new mining landscape. But as greater numbers of support personnel begin to return from remote work to support operations, mine operators are confronted with new challenges to reassure their people that the workplace is safe.

Temperature screening

Many operators have initiated temperature screening programs in an effort to detect a coronavirus threat before the workforce is exposed.

In developing screening programs, most companies have relied on guidance issued from the Centers for Disease Control & Prevention (CDC). This guidance is constantly evolving.

On April 20, for example, the CDC updated its advice to employers on conducting employee temperature screens. Noting that there are a variety of methods, the CDC discussed three procedures that emphasize the safety of the screeners, as well as screened employees.

One is a social distancing procedure whereby the employee takes his own temperature while a screener at least six feet away asks the employee to confirm verbally that the temperature is less than 100.4 degrees. The screener also observes whether there are any signs of illness.

The second suggested procedure involves barrier or partition controls where a gloved and masked screener stands behind a glass or plastic window to conduct the temperature check and make a visual inspection.

The third procedure involves the use of substantial personal protective equipment (i.e., mask, eye protection or face shield, and disposable gloves) to perform the temperature check. The CDC did not note a particular preference for either method. It should be noted, however, that as temperature checks become more common across the country, operators will need to stay up to date with more detailed CDC recommendations and state and local public health authorities in developing and managing their programs.

Discontinuing isolation

The CDC has also provided updated guidance to employers about how to manage the return of personnel who have been sent home to isolate – in the absence of testing – after displaying potential symptoms of the coronavirus. This new guidance represents a more conservative approach to returning personnel to the workplace.

In earlier guidance, the CDC advised that home isolation could be discontinued after it had been at least seven days since symptoms began and 72 hours since resolution of fever with improvement in respiratory symptoms. The new guidance extends the timeline to at least 10 days after symptoms have begun, and maintains the requirement that at least 72 hours must have passed since resolution of fever and improvement in other symptoms.

Consequently, where testing is not feasible or where employees are not being given specific instructions from the employee’s health care provider or a public health authority about when they may return to work, the CDC says employers may consider allowing employees to return after it has been at least 10 days since the employee’s symptoms first began – and at least 72 hours since the employee’s fever (if any) resolved and there has been improvement in the employee’s other symptoms.

Of course, it should be cautioned that many jurisdictions have established more stringent guidelines, and operators need to be familiar with all of the requirements governing their operations and personnel.

Here comes the litigation

It goes without saying that the primary motivation for the implementation of these types of procedures is to protect the health and well-being of all personnel on mine property.

With that said, a byproduct of these types of safety and health efforts is enhanced protection from liability for alleged exposure to the coronavirus in the workplace.

Reports in the media about lawsuits and claims against employers related to the pandemic have markedly increased since late March. A general review of reports from around the country, involving all industries, indicates numerous employment-related lawsuits fall into the following broad categories: whistleblowing/retaliation; unsafe working conditions; disability discrimination; wage and hour; and denial of leave under the Families First Coronavirus Act and the Family & Medical Leave Act.

Clearly, return to work will not mean a return to business as usual. The operators who weather this storm most effectively will be the ones who stay up to date on the latest guidance from federal and state health officials and adapt and manage their work procedures and health monitoring accordingly.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.

---

For additional P&Q coverage related to the coronavirus, visit our dedicated webpage.