On June 17, 2020, the U.S. Occupational Safety and Health Administration (OSHA) issued its Guidance on Returning to Work, recommending a three-phase process for returning employees safely to workplaces deemed by local authorities as “non-essential businesses.” A supplement to prior references (including Guidance on Preparing for COVID-19 and Guidelines for Opening Up America Again), this guidance recommends the following phases:
- Phase 1: Make telework available where possible and feasible, and for employees returning to the workplace, consider limiting the number of people to maintain strict social distancing. Accommodate workers at higher risk of illness, including elderly employees and those with serious underlying health conditions.
- Phase 2: Make telework available where possible, and resume non-essential business travel. Ease limitations on the number of employees in the workplace but maintain moderate to strict social distancing and accommodation of higher-risk employees.
- Phase 3: Resume unrestricted staffing of work sites.
However, OSHA also cautions employers that they “should monitor state, local, tribal, and territorial (SLTT) health department communications to understand how the communities in which their workplaces are located are progressing through the reopening phases identified in the Guidelines for Opening Up America Again.”
Employers should address in their reopening plans such things as:
- Hazard assessment (assessing which job tasks may involve occupational exposure or exposure from the public; assessing outbreak conditions in the area);
- Hygiene (handwashing, hand sanitizer, cleaning and disinfecting);
- Social distancing (marking six-foot zones, six-foot reminders, and directional signs in narrow hallways and corridors);
- Identification and isolation of sick employees;
- Procedures for returning to work after exposure (these vary by state);
- Engineering and administrative controls, safe work practices, and personal protective equipment (PPE);
- Workplace flexibilities (such as continuing to permit telework);
- Worker training; and
- Anti-retaliation for employees who adhere to the guidelines or raise concerns.
As part of these plans, employers:
- May conduct worksite testing for the SARS-CoV-2 virus;
- May conduct worksite temperature checks or other health screening;
- Should retain records of testing, temperature checks and health screening as medical records;
- Should provide protections for those conducting tests and checks; and
- Should consult the U.S. Equal Employment Opportunity Commission’s guidance (What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws) when developing screening policies.
As with other OSHA Guidance, this guidance does not carry the force of a standard or regulation, but OSHA may consider compliance with the guidance in connection with an investigation under the General Duty Clause of the OSH Act, which requires employers generally to provide employees a workplace free from recognized hazards likely to cause death or serious physical harm.
Other OSHA standards still must be followed. For example, employers must conduct a hazard assessment in accordance with OSHA’s PPE standard to determine if PPE such as gloves, surgical masks, or face shields are necessary. Employers should consider modifying worker interaction with customers and with each other in order to reduce the need for PPE. OSHA also notes that cloth face masks are not considered PPE but may be
helpful in reducing the spread of infectious respiratory droplets. Employers with questions can even consult with OSHA to obtain specific guidance in several ways:
OSHA has released several other guidebooks to assist employers, and industry-specific guidance (for such employees as stockroom and loading dock workers, dental practitioners, nursing home workers, construction workers and others) can be found on OSHA’s website at https://www.osha.gov/SLTC/covid-19/.
The Centers for Disease Control and Prevention (CDC) also offers general and industry-specific guidance, and its latest information related to COVID-19 can be found at https://www.cdc.gov/coronavirus/2019-nCoV/index.html.
Calfee’s lawyers practicing in the areas of workers’ compensation, OSHA compliance and workplace safety are available to assist your company as employees are scheduled to return to the workplace. Please contact any of the attorneys listed below or any member of our Labor and Employment and Workers’ Compensation and OSHA practice groups.