How to navigate states’ patchwork quilt of return-to-office training requirements

And the requirements are as different as the states that created them.

You might hope that the regulations would be uniform and exactly alike, from California to New England to Virginia, making it incredibly easy for national employers to comply with.

Nice try. Nope. Sorry. The state regulations are, in fact, very different from one another.

For example, Maine’s training requirements only apply to retailers, restaurants, and hotels. California’s required training must include notice that food handlers should be given a break every 30 minutes to wash their hands. Michigan’s coronavirus training order says in the event of a positive coronavirus test, the local health department and all of the infected worker’s co-workers must be notified within 24 hours. Other states have other requirements regarding positive tests, like Minnesota’s requirement that someone in every company “must be designated to gather information from workers who may be sick with COVID-19 and to engage in needed communications, while ensuring the privacy of infected workers is maintained.”

On Monday, Virginia finalized first-in-the-nation enforceable workplace safety standards that include a training requirement.

“In many ways, Virginia’s new standard tracks existing guidance from both OSHA [Occupational Safety and Health Administration] and the Centers for Disease Control and Prevention (CDC). In other ways, the standard is more expansive,” wrote Jonathan Snare, partner in the firm Morgan Lewis, as well as associates Kaiser Chowdhry and Alana Genderson, in a July 23 blog post.

“The training content varies from state to state,” said Michael Johnson, CEO of Clear Law Institute, which provides 50-state compliant coronavirus safety training. Clear Law offers training specific to each state and will be hosting a webcast with Compliance Week on July 29 (2 p.m. ET) to discuss training options for employers.

“Bottom line: Employers need to tailor their training and return-to-work plans on a state-by-state basis.”

Howard Lavin, Partner, Stroock

Keeping track of ever-changing requirements is, of course, a challenge, particularly for employers with multi-state operations, said Howard Lavin, partner at the New York firm Stroock.

Guidance by states, such as New York and California, “requires employers to train employees on proper personal protective equipment (PPE) use, how to prevent the spread of the virus, performance of COVID-19 screening, the importance of not coming to work when sick, and information on paid leave benefits,” he said. “Virginia’s mandate requires employee training on such things as the signs and symptoms of COVID-19, awareness of the ability of pre-symptomatic and asymptomatic COVID-19 individuals to transmit the virus, social distancing, disinfecting frequency, and PPE use.”

He added: “Bottom line: Employers need to tailor their training and return-to-work plans on a state-by-state basis.”

For some employers, providing safety training for employees is not enough. They must also ensure third-party contractors performing work on their jobsites have also received proper training, said Dag Yemenu, executive vice president for products at ISNetworld (ISN), a vendor that provides a web-based contract management system for clients and contracting companies.

“Some of these workplaces are already considered high-risk, and COVID has accelerated the risk,” he said. “Those risks are compounded when third-party contractors are involved.”

ISN has a training module that can be accessed by third-party contractors, and then employers can access the rosters of third-party contractors to ensure all employees have received the proper training.

Even if an employer does not have a workplace in any of the 16 states, supplying coronavirus safety training for employees is still a good idea, Johnson said. It sends a good message to employees, Johnson said, that the company is taking safety seriously.

And, if an employee does get infected with coronavirus in the workplace, having provided robust training is an employer’s best defense against a lawsuit, Johnson said.

Dozens of class action lawsuits have been filed regarding workplace coronavirus infections. A state court judge in Illinois recently issued a preliminary injunction in favor of five McDonald’s restaurant employees and their families. The employees filed a class action lawsuit against McDonald’s and four franchises of the restaurant chain, alleging their employers were not doing enough to enforce workplace mask policies or to train employees about Illinois’ coronavirus training requirements, which mandate employers ensure there is enough room at the workplace for employees to practice social distancing.

“Given the absence of uniform, nationwide standards, we should expect additional states to develop guidelines and regulations either in response to, or to try to prevent, flare-ups of the virus,” Lavin said.