Employers are responsible for the safety of employees, whether they work in the office or at home.
The COVID-19 pandemic accelerated the adoption of the hybrid workplace. However, with this acceptance comes more threats, liabilities and legal exposure for all employers regarding the life safety of their employees.
In his session at NFMT Remix, Bo Mitchell, president of 911 Consulting, will point out that employers have the sole duty of care for employee life safety, whether those employees work from home or at the office (or a mixture of the two).
When one looks at life safety that way, a hybrid workforce actually doubles the employer’s legal exposure regarding employee injury and death. OSHA, NFPA and all 50 State Fire Codes require all employers to plan for all emergencies and to train all their employees whether they work from home or in the office. Mitchell’s presentation titled “The Hybrid Workplace Threats, Liabilities, and Employer Exposure/Employee Life Safety Issues” will use workplace violence as an example of life safety issues in the new world of hybrid workplaces.
NFMT: What are the laws, regulations and standards regarding hybrid workplaces?
Mitchell: Almost all employers are ignorant of workplace law covering offices in employees’ homes.
First, every employer — no matter what their business model — has a duty of care to keep all employees safe. Every employers’ duty of care is defined by law: “Each employer shall furnish to each of his employees a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” {§5(a)(1) Occupational Safety and Health Act of 1970.}
Second, every employer shall have an Emergency Action Plan addressing “recognized hazards.” That means all hazards from active shooter to severe weather to bullying in your workplace. (OSHA 29CFR1910.38 and NFPA 1600).
Third, OSHA issued its “Instructions” for its Compliance Officers in 2000 — two decades ago —regarding the application of OSHA regulations to all home offices. For purposes of legal and operational safety, OSHA’s 54-page “Instructions” mean that the employer plans and trains for employee safety at home offices under all OSHA regs. (CPL 2-0.125).
Fourth, under law, the employee has no duty of care. Only the employer.
Fifth, your corporate counsel will therefore tell you that the definition of safety in the hybrid office is embodied in the employers’ duty of care covering the creation and training of an Emergency Action Plan in your traditional workplace as well as your employees’ home offices.
NFMT: Who polices employee safety in hybrid workplaces?
Mitchell: Before an emergency, no one polices employer safety regulations in traditional or home offices. The hammer falls on the employer when an emergency occurs injuring or killing an employee. Then the OSHA Compliance officer inspects the workplace and demands to see the Emergency Action Plan and employee training records. The OSHA Compliance Officer’s inspection is often joined by the Fire Marshal, police and any other applicable agency depending on the emergency. All true at the traditional office and the home office.
Then, of course, there is the lawsuit. No matter what OSHA or any government agency rules, the employer will be sued. Workers Comp and your insurance company are no shield from a lawsuit where the employer has failed to plan and failed to train employees for emergencies no matter if that emergency is in the traditional or home office.
OSHA reports 5,000 employees will be killed and 2.1 million employees injured in the next 12 months in the American workplace.
I am a registered expert at court from Florida to California. I have read your deposition. Failure to plan and failure to train are negligence prima facia. You will be hung by a jury. The employer always is. You can run, but you cannot hide.
NFMT: Your presentation will use workplace violence as a life safety example. Can you describe how this is an issue for the hybrid workplace?
Mitchell: Here are the stats. According to the U.S. Department of Justice (USDOJ) research: There are 2 million incidents of workplace violence (WPV) every year — assaults, threats, stalking, bullying, rape, murder, bomb threats, suspicious packages.
Much WPV is perpetrated by people known to the employer and the employee attacked. The most horrific kind of WPV is intimate partner violence (IPV). The USDOJ reports 1,300 deaths each year because of IPV. The great majority of victims are women. Thus, your sending employees to home offices actually increases the risk-potential of WPV given the workplace is now at home — nearer to and captured daily by intimate partners.
NFMT: What are other life safety issues facing employers and employees in hybrid workplaces?
Mitchell: Most employers are unaware of the stats. The American Red Cross reports 10,000 heart attacks at work annually, but 1.5 million outside the workplace. That could be at a mall, sports event, car collision — and at home where the employee works.
The National Fire Protection Association (NFPA) reports 112,000 fires at workplaces annually. The number is three times higher in residences. At home, there are no sprinklers like you will find in most traditional offices. At home, employees do things not allowed in traditional offices like cook and smoke — all day long.
Traditional offices are built for high-use electrical and wired IT. Not so at home offices. Look under the desk of any employee’s desk at home. The maze of electrical and IT wires will horrify your Fire Marshal. Home electrical systems were built 10, 20, 50 years ago for a radio, a TV and a fan. They were not built for a PC, laptop, routers, modems, printer, internet, Wi-Fi, faxes, charging cell phones — all in addition to TVs, radios, streaming, washer, dryer, oven, microwave, hot water, air conditioning, heating. The electrical footprint in home offices is stunning — and risky for the employee and the employer.
In severe weather, employees will be more vulnerable at home than in their offices. It’s ironic that before COVID, most employers’ emergency policies regarding weather sent or kept the employee at home. How does that sound now given the stats on weather emergencies at home versus the office? The reality: medical, fire, weather and WPV threats are multiplied at home offices versus the traditional offices.
NFMT: Should facility managers be updating their safety and emergency plans to include hybrid and remote situations?
Mitchell: They’d better. FM’s role and goal are to keep employees safe in their offices whether that office be in the traditional workplace or at home. The law is unambiguous and voluminous. Failure to plan and failure to train are the negligence issues at court.
Creating an Emergency Action Plan for the hybrid office strategy is the way the employer successfully addresses their duty of care. FM’s need to protect their people, property, productivity and their posteriors.
