OSHA Issues New Guidance for Reopening Nonessential Businesses
OSHA Client Alert 06/24/20 Cynthia A. Faur, Lauren R. Harpke, Christopher L. Nickels
Last week, the Occupational Safety and Health Administration ("OSHA") issued new guidance for nonessential businesses to consider when reopening their doors. The recently issued Guidance on Returning to Work is intended to supplement OSHA’s previous Guidance on Preparing Workplaces for COVID-19 and also the White House’s Guidelines for Opening up America Again. While the new OSHA guidance document does not impose legally binding obligations or reveal new standards or practices to protect employees from exposure to COVID-19 that were not previously available, this newly issued guidance provides practical examples that employers can use to implement hygiene practices, social distancing, other workplace controls and flexibilities, and employee training in their reopening plans. It also addresses OSHA requirements that apply to businesses as they evaluate and take steps to mitigate the risks posed by COVID-19 to their employees, including recordkeeping requirements that could apply to medical monitoring and on-site temperature checks of employees.
OSHA’s Guidance on Returning to Work contemplates a phased reopening. During all phases of reopening, employers should implement strategies for basic hygiene (e.g., hand hygiene, cleaning and disinfection), social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training). The extent and nature of the workplace practices and strategies that need to be employed, however, may vary based on the level of virus transmitting in the community and the phase of reopening for the location.
Consistent with the White House Guidelines on Opening up America Again, the OSHA guidance discusses a three-phase reopening:
- Phase I (meet initial gating criteria for reopening [i.e. reduction in cases over a 14-day period and sufficient hospital capacity and testing]): Employers should include remote and telework options when feasible and possible. For employees that do return to the workspace, employers should consider steps to make social distancing practices feasible, such as limiting the number of people allowed in the spaces and considering accommodations for employees who themselves, or have household members, with health conditions or are otherwise at higher risk of illness.
- Phase II (no evidence of a rebound and satisfy the gating criteria a second time): Employers should continue a focus on remote and telework options, but would resume non-essential business travel. Additionally, capacity limitations in the workplace could be lessened, but the workplace should be advised to continue moderate to strict social distancing practices and accommodations for vulnerable workers.
- Phase III (no evidence of a rebound and satisfy the gating criteria a third time): Employers can resume unrestricted staffing.
Not all states and localities, however, are using the three-phase approach in the White House guidelines. For example, the state of Illinois has a four-phase approach. As noted in the guidance, employers should stay abreast of developments and announcements from their state and local health departments and follow the appropriate guidance. Readjustments to reopening plans may be necessary based on changing outbreak conditions in the area.
As a best practice, employers may want to develop a written reopening plan setting forth the actions taken to ensure the safety and health of employees during the COVID-19 pandemic. The new OSHA guidance outlines how to implement certain guiding principles that should be addressed in an employer’s reopening plan. The implementation examples included in the guidance are not exhaustive and may not apply uniformly to all employers. The guiding principles and examples, however, are a baseline for employers developing reopening plans and may be particularly helpful to employers in low-risk and non-manufacturing sectors (e.g., office work) that did not previously conduct active and ongoing worker safety evaluations. A few key principles to consider in reopening plans include:
- Hazard Assessment: OSHA regulations require that all employers assess job tasks performed by their employees to determine if personal protective equipment (“PPE”) or other protective measures or controls are necessary. The employer should document and certify the hazard assessment. With respect to COVID-19, the new guidance notes that employers may be able to meet this requirement through performance of a desktop assessment of employees’ potential exposure to coronavirus from the general public and coworkers.
- Controls: If the hazard assessment performed by the employer identifies potential for exposure to coronavirus in the workplace, then the employer must select and implement appropriate controls to mitigate identified hazards to affected employees. For COVID-19 exposures, controls could include (1) engineering controls such as physical barriers between workstations or ventilation improvements; (2) administrative controls such as staggering shifts, limiting room capacities, directional traffic flow through the workspace, implementing social distancing practices, or replacing in-person meetings with video or teleconferencing options; and (3) providing and ensuring workers utilize appropriate PPE, to the extent necessary. Please note that cloth face coverings are not considered PPE under OSHA because they do not protect the wearer of the face covering, but instead protect others from the wearer’s respiratory secretions. Requiring cloth face coverings would be considered an administrative control.
- Training: Employers should train employees on symptoms and risk factors of COVID-19, potential exposures to the virus in the workplace, and how to help prevent the spread of COVID-19 at work. If PPE measures are implemented for all or certain employees, employers must also provide training as required by OSHA standards, including the specific standards required for respiratory protection if respirator use is implemented.
- Flexible Workplace Policies: Employers should evaluate and update workplace policies that would facilitate virus exposure reduction, such as the appropriate use of remote work, sick leave, or other types of leave. Employers should also communicate with their employees regarding the existence of these policies and instructions for their use.
- Sick Employee Policies: Employers should proactively develop plans for identifying sick employees, managing and isolating sick employees, working with health officials to conduct contact tracing and notifications, and the return of employees to the workplace.
- Hygiene and Social Distance: The new OSHA guidance also provides additional context for encouraging good hygiene practices and social distancing.
Finally, it is important to emphasize that all employees have a right to raise concerns regarding their workplace health and safety without fear of retaliation by their employers. This includes raising concerns to OSHA about an employer’s COVID-19 practices or lack thereof, which remains a top priority for OSHA.
Employer-Conducted Health Screening and Testing
As noted in the guidance, an employer’s reopening plan may include employee self-monitoring or screening for COVID-19 symptoms so a potentially infected employee does not unwittingly enter the workplace. Employers, however, can also take additional steps, including COVID-19 testing and on-site screening for COVID-19 symptoms, including temperature checks, provided such actions are conducted in a transparent manner applicable to all employees (i.e., non-retaliatory) and meet OSHA and other federal and state requirements, including the confidentiality requirements of the Americans with Disabilities Act.
Employers who maintain records of employee testing, health screening, and temperature checks should be aware of potentially applicable recordkeeping and confidentiality requirements. In the Q&A section of the new guidance, OSHA notes that such records might qualify as “employee medical records” under the Access to Employee Exposure and Medical Records standard to the extent the records are made or maintained by a physician, nurse, or other health care personnel, or technician. See 29 C.F.R. §1910.1020. The employer would then be required to retain these records for the duration of each worker’s employment plus 30 years, and follow confidentiality requirements.
Employers who elect to conduct on-site testing or health screening should also ensure that employees performing such screening have adequate protection from exposure to coronavirus.
Regardless of how an employer chooses to address reopening based on the various guidance available, the employer’s approach should be entered into with intentional forethought and planning based on the area’s outbreak conditions and specific demands of the workplace. Such a plan will ensure that businesses do not reopen without actively considering the risks and allowing for consistent implementation of reasonable and necessary protections across its business. The plan should also allow for fluidity based on the likelihood that such outbreak conditions are going to be in flux for the foreseeable future.
If you have questions about how this guidance may be implemented at your operation, please contact your Quarles & Brady attorney or: