What Businesses Should Know About OSHA’s Supplemental Reopening Guidance

The Occupational Safety and Health Administration (OSHA) recently issued guidance on returning to work for businesses deemed nonessential. The guidance is intended to supplement the agency’s previously issued guidance on preparing workplaces for COVID-19 as well as the Centers for Disease Control and Prevention’s (CDC) guidelines for “Opening Up America Again.” OSHA’s guidance is also supposed to supplement state and local information and reopening requirements. You can use the guidance to develop policies and procedures to ensure your employees’ safety and health.

Phased Reopening

OSHA recommends a three-phase reopening process to be aligned with the lifting of stay-at-home orders and other specific federal, state, and local requirements. Businesses should generally follow these guidelines.

Phase 1. Make telework available when feasible. Limit the number of people in the workplace to maintain strict social-distancing practices. Limit nonessential business travel. When feasible, accommodate workers at higher risk of severe illness, including workers over age 65 and those with serious underlying health conditions. Additionally, consider extending special accommodations to workers with household members at higher risk of severe illness.

Phase 2. Continue to make telework available when possible. Nonessential business travel can resume. Limitations on the number of people in the workplace can be eased, but moderate to strict social-distancing practices should continue. Continue to accommodate vulnerable workers as identified in the first phase.

Phase 3. Resume unrestricted staffing of worksites.

Although OSHA recommends providing accommodations to older workers and those with vulnerable family members during the first and second phases, the measures aren’t legally mandated. Recently updated Equal Employment Opportunity Commission (EEOC) guidance, “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws,” clarifies employers aren’t required to provide corona-virus-related accommodations to older workers merely because of their age. In addition, employers can’t unilaterally exclude older workers from the workplace based on their age.

The Americans with Disabilities Act (ADA) may require reasonable accommodations that could offer protection to an employee whose disability puts the individual at greater risk from COVID-19 but doesn’t require you to provide accommodations based on a disability of an employee’s family member. Although not required, you may consider voluntarily making temporary accommodations in those situations during the pandemic if feasible.

OSHA recommends that during all stages of reopening, you should develop and implement plans that address preventing, monitoring for, and responding to any emergence or resurgence of COVID-19 in the workplace or community. Increases in the numbers of infected and sick employees in a workplace can create a need for contact tracing of individuals who visited the site and enhanced cleaning and disinfection practices—or even a temporary closure of the business.

9 Guiding Principles

During all phases of reopening, OSHA urges employers to implement strategies to address nine principles. Many of the principles are similar to those recommended by the agency in its earlier guidance for preparing the workplace for COVID-19.

Hazard Assessment. Determine when, where, and how workers might be exposed to the virus in the course of their job duties.

Hygiene. Encourage frequent and proper handwashing, provide workers with hand sanitizer when they can’t readily wash their hands, and identify high-traffic areas for enhanced cleaning and disinfecting.

Social Distancing. Limit business occupancy, demarcate flooring in six-feet zones, and post signs reminding workers to keep at least six feet between one another.

Identification and isolation of sick employees. Ask employees to self-evaluate for COVID-19 symptoms before coming to work, and establish a protocol for managing people who become ill in the workplace.

Return to Work After Illness or Exposure. Follow CDC guidelines for discontinuing self-isolation and returning to work after an illness or exposure, and ensure workers who have been exposed to the coronavirus are monitored for symptoms.

Controls. Implement engineering controls (e.g., installing physical barriers/shields, adding enhanced ventilation) and administrative controls (e.g., staggering work shifts, replacing in-person meetings with video conference calls, and ensuring workers wear face coverings), and provide workers with appropriate personal protective equipment (PPE).

Workplace Flexibilities. Consider revising your policies for telework and sick leave to minimize workers’ exposure risk, and communicate the options to your staff.

Training. Provide training covering your COVID-19 response measures, cloth face coverings, and the proper use and maintenance of PPE.

Antiretaliation. Ensure workers understand their rights to a safe work environment, know whom to contact with concerns about workplace safety, and realize they may report coronavirus-related safety concerns without fear of retaliation.

Additional Guidance

Additional guidance comes in the form of a Q&A section addressing issues such as workplace health screening. The reopening guidance confirms neither the Occupational Safety and Health Act (OSH Act) nor the agency’s standards prohibit employers from conducting SARS-CoV-2 (the virus that causes COVID-19) testing, as long as it is done in a transparent manner for all employees and isn’t retaliatory. The EEOC guidance likewise makes clear you may conduct the testing on a nondiscriminatory basis, consistent with the ADA’s requirement that medical tests of employees be “job-related and consistent with business necessity.”

Applying the ADA standard to the current pandemic, you may conduct tests to determine if employees entering the workplace have the COVID-19 infection (but not the antibody) because an individual with the virus will pose a direct threat to the health of others. OSHA cautions that nevertheless, you can’t presume individuals who test negative for the virus present no hazard to others in the workplace and should therefore continue to implement basic hygiene, social distancing, workplace controls and flexibilities, and employee training described in its guidance.

OSHA’s reopening guidance and the EEOC’s guidelines apply the same approach to other screening, such as temperature checks, again advising they be only one part of a comprehensive program to monitor worker health during the pandemic. OSHA’s guidance also comments on record keeping, explaining employers aren’t required to make a record of temperatures when they screen workers but may instead acknowledge a reading in real-time.

If records are created by a physician, nurse, or other healthcare personnel or technician, they qualify as medical records under the OSH Act’s access to employee exposure and medical records standard, with its retention (duration of employment plus 30 years) and confidentiality requirements. Keep in mind, however, even if the Act doesn’t cover the records because they were created by someone other than a physician or nurse, the ADA’s requirements for maintaining their confidentially will apply, along with a one-year record retention requirement.

Bottom Line

OSHA has no standard or regulation specific to SARS-CoV-2 or COVID-19. Likewise, the agency’s reopening guidance isn’t a standard or regulation creating any legal obligations. Nevertheless, covered employers are responsible for providing a safe and healthy workplace free from recognized hazards under the OSH Act’s General Duty Clause. The guidance is a tool to assist in performing a hazard assessment and creating workplace policies and practices that satisfy your obligations under the clause.

To the extent specific OSHA standards for respiratory protection, PPE, and sanitation standards apply to your workforce, you should incorporate provisions in your policies and practices to comply with them.

This article, slightly modified to note recent updates, was featured in the September issue of the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.