On Thursday, June 18, 2020, The U.S. Department of Labor – Occupational Safety and Health Administration (OSHA) posted “Guidance on Returning to Work,” which can be found here. The purpose of the guidance is to assist employers in safely returning their employees to work and in reopening businesses shuttered by the emergency stay at home and similar state and local orders issued across the country in response to the COVID-19 pandemic. As those orders expire or are modified, OSHA reminds businesses that they have a general duty to provide their employees with workplaces free from recognized hazards likely to cause death or serious harm. COVID-19 has been recognized as just such a hazard.
The topics addressed by the OSHA guidance include basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training. A set of “Employer Frequently Asked Questions” (FAQs) is included as well.
First, the guidance sets forth the following general guidelines for businesses based on the phased reopening outlined in the White House’s “Guidelines for Opening up American Again,” which can be found here.
- Phase 1: Businesses should consider telework where feasible, limiting the number of employees in the workplace to ensure proper social distancing, accommodations for high risk individuals and those who live with high risk individuals, and limiting non-essential business travel.
- Phase 2: Businesses should continue telework where feasible, continue to maintain social distancing while easing limitations on the number of workers in the workplace, and continue to accommodate vulnerable workers. Businesses may resume non-essential business travel.
- Phase 3: Businesses may resume unrestricted staffing of workplaces.
The guidance then suggests that businesses take the following actions before reopening begins:
- Hazard Assessments: Assess job categories and tasks to determine where there may be occupational exposure.
- Hygiene: Provide soap and water as well as hand sanitizer, and target high-traffic areas and touch spots for enhanced cleaning pursuant to CDC guidance.
- Social Distancing: Limit occupancy (both employees and consumers) to a number that provides for proper social distancing, mark floors to assist in compliance with social distancing, post signage reminding individuals to maintain at least 6 feet between each other, and post directional signs in hallways where width restrictions make distancing difficult or impossible.
- Identification and Isolation of Sick Employees: Ask employees to self-evaluate for symptoms and to stay home if sick, and establish a protocol for people who become ill in the workplace.
- Return to Work After Illness or Exposure: Adhere to CDC guidance on isolation or quarantine, return to work. Employees who have been exposed to someone with COVID-19 should monitor themselves or receive monitoring pursuant to CDC guidance.
- Controls: Implement appropriate controls including physical barriers, enhanced ventilation, staggered shifts, limiting breakroom capacity, using videoconferencing instead of in-person meetings, ensuring individuals wear proper face coverings, and, if required, ensuring appropriate PPE is used and OSH Act requirements are met.
- Workplace Flexibilities: Evaluate policies and implement new ones that facilitate telework and implement appropriate leave policies. Be sure to communicate policies with employees.
- Training: Train employees on risks of exposure, measures implemented to protect them, face coverings, and appropriate use of PPE
- Anti-Retaliation: Ensure employees understand their rights and responsibilities under the law and workplace policies.
In addition to the above guidance, the FAQs explain that under the Occupational Safety and Health Act (OSH Act), businesses can test employees for COVID-19, and businesses may conduct temperature or health screenings of employees. Testing and screenings must be done in a non-retaliatory manner and should take into consideration confidentiality requirements such as those required by the Americans with Disabilities Act (ADA). Additionally, if businesses do conduct employee temperature checks or health screenings, records of the information obtained would be subject to record keeping requirements. Businesses can find guidance from the Equal Employment Opportunity Commission which addresses temperature checks and health screenings here.
The FAQs also cover providing personal protective equipment (PPE) to employees. Businesses should conduct a hazard assessment under the OSH Act’s PPE standard to determine whether they are subject to PPE requirements. OSHA’s previous guidance entitled “Guidance on Preparing the Workplace for COVID-19” addresses this topic and can be found here. Additionally, our prior alert regarding OSHA’s Enforcement Guidance can be found here and briefly explains OSHA’s “risk level framework” for assessing certain hazards in the workplace.
Finally, this new guidance provides a number of resources for businesses and employees including links to various OSHA services and programs as well as a helpful appendix which lists applicable OSHA standards and requirements which businesses must follow. Businesses should be sure to check their obligations under other federal, state, and local laws when considering reopening issues as well.
Ballard Spahr’s Labor and Employment Group is closely following COVID-19 legislation and other developments related to COVID-19 as they impact the workforce. If you have questions, please contact any member of the Labor and Employment Group for advice about your situation.
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