(The following article written by the law firm, Proskauer Rose LLP, and published in Lexology. Proskauer is a leading international law firm with offices in New York, Beijing, Boston, Chicago, Hong Kong, London, Los Angeles, Paris, São Paulo and Washington, D.C.,Boca Raton and New Orleans.)
On June 18, OSHA issued non-binding guidance to help employers safely reopen non-essential businesses and facilitate their employees’ return to work during the COVID-19 pandemic. The guidance focuses on employers implementing strategies for five main aspects of the workplace: basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training. As OSHA’s National News Release states, the guidance is meant to supplement the U.S. Department of Labor’s (DOL) and Health and Human Services’ previously issued guidelines regarding reopening workplaces.
Foremost, the guidelines note that employers’ reopening plans should align with all applicable requirements, including state and local stay-at-home orders, and federal requirements. Employers are encouraged to continually monitor all applicable government guidelines for ongoing information that could impact reopening plans. Further, employers should continue to consider flexible work arrangements, such as telework, and “alternative business operations to provide goods and services to customers.”
OSHA’s guidelines contain recommendations specific to each phase of reopening, as identified by the White House’s and the CDC’s “Opening Up America Again” guidelines:
During Phase 1 — states or regions can move into Phase 1 when the state or region has met certain specified milestones, including a downward trajectory of documented cases within a 14-day period, or a downward trajectory of positive tests as a percent of total tests within a 14-day period. During this phase, employers should consider allowing employees to telework when feasible and limiting the number of people physically present in the workplace in order to maintain social distancing. Workers with heightened risk of severe illness, such as older adults and those with certain medical conditions, as well as workers with household members at heightened risk, should be considered for workplace accommodations where feasible. In addition, employers are encouraged to limit all non-essential business travel.
During Phase 2 — no rebound in cases after 14 days in Phase 1, and continue to meet the gating criteria to begin Phase 1. During this phase, employers should continue to offer teleworking options. However, non-essential business travel may resume. Employers may ease restrictions on the number of people in the workplace, but workers should be able to maintain moderate to strict social distance, depending on the workplace. Employers are encouraged to continue the Phase 1 accommodations for workers at heightened risk and those with household members at heightened risk.
During Phase 3 — no rebound in cases during Phase 2, and continue to meet the gating criteria throughout all phases. During this phase, businesses may resume staffing workplaces without restrictions.
Throughout all phases, employers should implement policies to prevent, monitor, and respond to COVID-19 cases in the workplace and local area. Employers should implement policies and procedures that outline phase-appropriate strategies for the guidelines’ five focal aspects of the workplace: basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training.
OSHA’s guidelines also contain the following “guiding principles” which each employer’s reopening plan should address, as well as examples of how to implement each principle:
Hazard Assessment: Hazard assessments include practices to determine when, where, and how workers may be exposed to COVID-19. Examples include assessing all job tasks to determine which involve occupational exposure, such as to the public or by close contact with coworkers, and considering the risk of current local outbreaks.
Hygiene: To promote hand hygiene, respiratory etiquette, and cleaning and disinfection practices, employers should provide hand sanitizer, or soap, water, and paper towels for anybody that enters the workplace. Additional examples include identifying high-traffic areas and targeting them for enhanced cleaning and disinfection pursuant to CDC guidance.
Social Distancing: Practices should include maximizing distance to the extent feasible and maintaining distance between all people, including workers, customers, and visitors. Employers may limit business occupancy to a certain number of workers and customers in order to enable social distancing. Employers might also post reminders and directional signs throughout the workplace.
Identification and Isolation of Sick Employees: To achieve this goal, the guidelines suggest encouraging employees to evaluate themselves for COVID-19 symptoms and stay home if they feel ill. Employers might also establish their own protocol to respond to those who become ill while in the workplace, such as isolating the sick person, cleaning, and disinfecting.
Return to Work After Illness or Exposure: Here, OSHA suggests employers follow CDC guidance regarding discontinuing self-isolation and returning to work, or monitoring after exposure, depending on the workplace.
Controls: Controls include utilizing engineering and administrative controls and personal protective equipment (PPE) as a result of the employer’s hazard assessment. To achieve this goal, employers should provide PPE and ensure workers use such equipment depending on the situation and identified hazards. Additionally, employers may consider increasing workplace ventilation, installing physical barriers or shields to separate workers, or implementing staggered work shifts.
Workplace Flexibilities: To ensure a flexible workplace, employers may consider new policies that utilize telework when appropriate, and provide sick or other types of leave, and communicate these policies and how to make use of them to workers.
Training: To ensure employees receive training on the signs, symptoms, and risk factors associated with COVID-19 and how to prevent the spread at work, employers are encouraged to train workers in the appropriate language and literacy level about various aspects of maintaining a safe workplace amid the risk of COVID-19, including regarding wearing face coverings in the workplace. Where PPE, including respiratory protection, is utilized in the workplace, OSHA standards for PPE must be followed, which includes training workers on how to put on, use, and take off PPE, how to maintain and dispose of PPE, and what protections PPE offers and does not offer. The guidance clarifies that cloth face coverings are not considered PPE for purposes of the OSHA PPE training requirements.
Anti-retaliation: Employers should engage in practices to ensure that no adverse or retaliatory action is taken against employees who adhere to these guidelines or raise workplace safety and health concerns. Employers should ensure that workers understand their rights to a safe work environment and to raise safety concerns to their employer or OSHA.
The guidelines explain that while the guiding principles should inform employers’ reopening plans, the examples of how to implement the principles do not apply to every employer. Nevertheless, all employers are encouraged to communicate to workers the measures taken to maintain a safe workplace, including through training, as well as provide a designated person to receive workers’ concerns.
The guidelines additionally remind employers that all of OSHA’s standards regarding protecting workers from infection in the workplace remain in effect, even as workers return to work. These include OSHA’s applicable PPE standards, respiratory protection standards, and sanitation standards. Of course, under the General Duty Clause, Section 5(a)(1) of the OSH Act, employers are always obligated to “provide a safe and healthful workplace that is free from serious recognized hazards.”
The guidelines also contain a series of FAQs. The answers confirm that employers may conduct worksite COVID-19 testing, temperature checks, and other health screenings. The FAQs explain that if employers choose to create records of the tests and screenings, then the records might qualify as medical records for purposes of certain record-keeping requirements. If they are medical records, employers must maintain the records for the duration of each worker’s employment plus 30 years. Employers must also follow confidentiality requirements. Employers need not make a record of temperatures when they screen workers; instead, they may acknowledge a temperature reading as it is made. Further, those personnel administering the tests and screenings must be protected from exposure to COVID-19. Note that the U.S. Equal Employment Opportunity Commission (EEOC) recently issued guidance that employers cannot require workers to take COVID-19 antibody tests without violating the Americans with Disabilities Act (ADA) because the CDC’s interim guidelines state that antibody tests should not be used to make decisions about individuals returning to the workplace and thus are not “job related and consistent with medical necessity” as required for medical examinations under the ADA.
The FAQs direct employers to other agencies’ guidance to inform their return to work policies, including the EEOC, DOL, CDC, and state and local health authorities.
The final FAQ encourages employers to modify worker interaction in order to reduce the need for PPE, “especially in light of potential equipment shortages.” The FAQs also remind employers that cloth face coverings are not PPE. We previously reported on this specific guidance here.
OSHA’s most recent guidelines serve as a resource for employers when creating return to work plans and policies. OSHA’s directives on implementing the identified guiding principles and FAQs may assist employers in safely reopening their businesses and workplaces. While the guidance is in the form of non-mandatory recommendations, OSHA has stated that an organization’s good faith efforts to comply with its recommended guidance will be taken into “strong consideration” when determining whether to cite violations and has indicated the General Duty Clause may be the basis for violations if employers do not engage in such good faith efforts. The guidelines also direct employers to nu