The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced in a press release on March 9, 2020, that it has published Guidance on Preparing Workplaces for COVID-19 to “help companies respond in the event of coronavirus in the workplace.” Importantly, OSHA notes that this “guidance is not standard or a regulation,” and does not create “new legal obligations.”

As we previously reported, the Occupational Safety and Health Act contains a General Duty Clause, Section 5(a)(1), which states that each employer “shall furnish to each of his employees employment and 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.”  Essentially, OSHA’s new guidance offers “advisory” recommendations and information to employers to assist them in complying with their obligations under the Occupational Safety and Health Act. Below is a summary of some of the key points from this new guidance.

How COVID-19 Could Affect Workplaces

In the event of a COVID-19 outbreak, OSHA states that workplaces may experience:

  • Absenteeism. Workers may be absent due to their own illness, because they are caring for sick family members, or out of fear of possible exposure. Additionally, caregivers may not be able to come to work if there are closures of schools or daycares.
  • Change in patterns of commerce. Consumer demand for items related to infection prevention (e.g., respirators) is likely to increase significantly, while consumer interest in other goods may decline. Consumers may also change shopping patterns because of a COVID-19 outbreak. Consumers may try to shop at off-peak hours to reduce contact with other people, show increased interest in-home delivery services, or prefer other options, such as drive-through service, to reduce person-to-person contact.
  • Interrupted supply/delivery. Shipments of items from geographic areas severely affected by COVID-19 may be delayed or canceled with or without notification.

OSHA’s Recommended Steps for All Employers

OSHA’s guidance goes on to discuss steps that every employer may take to reduce the risk of worker exposure to COVID-19 in the workplace, and makes the following recommendations:

  1. Develop an Infectious Disease Preparedness and Response Plan. OSHA suggests that this plan should consider and address the levels of risk associated with various worksites and job tasks, based on the consideration of the following factors:
    • Where, how, and to what sources of the virus workers might be exposed;
    • Non-occupational risk factors;
    • Workers’ individual risk factors; and
    • Controls necessary to address those risks.

OSHA also recommends that employers “[s]tay abreast of guidance from federal, state, local, tribal, and/or territorial health agencies, and consider how to incorporate those recommendations and resources into workplace-specific plans.”

  1. Prepare to Implement Basic Infection Prevention Measures. OSHA encourages all employers to implement good hygiene and infection control practices. Consistent with the Interim Guidance of the Centers for Disease Control and Prevention (CDC) for Businesses and Employers, OSHA recommends that employers:
    • Promote frequent hand washing.
    • Encourage workers to stay home if they are sick.
    • Encourage respiratory etiquette.
    • Provide customers and the public with tissues and trash receptacles.
    • Explore policies and practices to increase distance amongst employees.
    • Discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible.
    • Maintain regular housekeeping, including routine cleaning and disinfecting with appropriate products.  (Products with Environmental Protection Agency-approved claims regarding emerging viral pathogens are expected to be effective against SARS-CoV-2 based on data for harder-to-kill viruses.) Follow the manufacturer’s instructions for use of all cleaning and disinfection products (e.g., concentration, application method and contact time, and personal protective equipment (PPE)).
  2. Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate. Among other items, OSHA encourages employers to identify and isolate potentially infectious individuals, protect workers who are in close contact with an infectious person, restrict personnel entering isolation areas, etc.
  3. Develop, Implement, and Communicate about Workplace Flexibilities and Protections. OSHA recommends that employers actively encourage sick employees to stay home and ensure that sick leave policies are flexible and consistent. Further, OSHA recommends employers be aware of workers’ concerns regarding pay, leave, safety, health, and other issues. These recommendations may overlap with employers’ obligations under other federal, state, and local statutes and ordinances, including but not limited to the Fair Labor Standards Act and the Family and Medical Leave Act.
  4. Implement Workplace Controls. OSHA further states that “[o]ccupational safety and health professionals use a framework called the ‘hierarchy of controls’ to select ways of controlling workplace hazards. In other words, the best way to control a hazard is to systematically remove it from the workplace, rather than relying on workers to reduce their exposure. During a COVID-19 outbreak, when it may not be possible to eliminate the hazard, the most effective protection measures are (listed from most effective to least effective): engineering controls, administrative controls, safe work practices (a type of administrative control), and PPE. There are advantages and disadvantages to each type of control measure when considering the ease of implementation, effectiveness, and cost. In most cases, a combination of control measures will be necessary to protect workers from exposure.”

The guidance goes on to provide specific examples of each category of these effective protection measures, including but not limited to:

    • Engineering Controls. Installing high-efficiency air filters, increasing ventilation rates, and installing physical barriers, such clear plastic sneeze guards.
    • Administrative Controls. Encouraging sick workers to stay home, minimizing contact among personnel, and discontinuing nonessential travel.
    • Safe Work Practices. Providing resources and a work environment that promotes personal hygiene.
    • Personal Protective Equipment. Using appropriate PPE to help present exposure, e.g. gloves, goggles, and respiratory protection, though it should not take the place of other prevention strategies. OSHA also recommends that employers check the OSHA and CDC websites often for updates regarding recommended PPE.
  1. Following Existing OSHA Standards: Finally, while there is no specific OSHA standard covering COVID-19 exposure, OSHA requirements in other areas may apply to prevent occupational exposure to COVID-19. These requirements may vary based on industry, and employers should seek additional guidance specific to their industry and workplace.

OSHA’s Recommendations regarding Classifying Worker Exposure

OSHA identifies four risk categories for workers exposure: (1) Very High (examples include, healthcare workers and morgue workers who have been in contact with known or suspected sources of COVID-19); (2) High (examples include healthcare delivery and support staff and medical transport workers); (3) Medium; and (4) Lower Risk.  OSHA believes that most workers will fall into the Low and Medium risk categories. OSHA’s guidance also provides recommended controls for each level of exposure.

If employers have questions addressing situations where an employee refuses to come to work, please see our FAQs and seek guidance as necessary.

Employers should keep in mind that the circumstances surrounding COVID-19 are constantly evolving, and employers should seek up to date legal guidance as circumstances change.  If you have any questions about this or other workplace issues, please do not hesitate to contact any Constangy attorney.

For more information, check out our Resource Center for FAQs and updates about the coronavirus.

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