OSHA Issues Guidance on Reopening Business and Returning Employees to Work

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthy workplaces for their employees. On June 18, 2020, the Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”) issued guidance, including frequently asked questions, in order to assist employers reopen businesses and return their non-essential employees to work in a safe manner.

The guidance does not constitute formal OSHA regulation, but is intended to supplement prior federal guidance, including the Guidance on Preparing Workplaces for COVID-19 and the Guidelines for Opening Up America Again. While the new guidance does not create any new legal obligations for employers or entitlements for employees, it does provide useful recommendations that nonprofit employers should follow in order to reduce the risk that employees contract or transmit COVID-19, while at work. These recommendations align with guidance provided by the California Department of Public Health (“CDPH”) for re-opening in California. These recommendation should also be followed or used as guidance in conjunction with implementing the requirements of any applicable county public health orders that apply to a nonprofit’s workplaces.

In the new guidance, OSHA provides recommendations on the following subjects: (1) assessment of workplace hazards related to COVID-19; (2) workplace hygiene and cleaning and disinfecting; (3) social distancing: (4) identification and isolation of sick employees; (5) employees returning to work after illness or exposure to the virus; (6) administrative and engineering controls to reduce the risk of transmission; (7) workplace flexibilities; (8) employee training; and (9) anti-retaliation measures.

Below, we briefly describe OSHA’s guiding principles for each of these subjects, and provide examples as to how nonprofit employers may implement policies and practices in order to make their workplaces and facilities safe for returning employees:

Hazard Assessment:

OSHA advises that employers analyze and determine when, where, how, and to what sources of COVID-19 workers may be exposed in the course of their employment.

Nonprofit employers should undertake the following steps in order to perform such analysis and make this determination:

• Assess all job tasks performed by or job categories held by employees to determine which job tasks or job categories may involve occupational exposure;
• Consider, among other things, exposures from members of the public that employees interact with, as well as exposures from close contact with coworkers in the workplace; and
• Consider current outbreak conditions in the communities where the organization’s workplaces are located.

Hygiene:

OSHA recommends that employers develop and adopt practices for hand hygiene, respiratory etiquette, and cleaning and disinfection. Note that OSHA recommendation concerning face coverings is discussed below in the section entitled, “Workplace Controls.”

Nonprofit employers should engage in the following hygiene protocol:

• Provide soap, water, and paper towels for worker  and visitors to wash their hands, and encourage frequent and proper handwashing;
• Provide hand sanitizer with at least 60% alcohol and encourage workers to use it frequently where and when handwashing is not possible or practicable; and
• Identify high-traffic areas, as well as surfaces or items that are shared or frequently touched, that could become contaminated, and target such areas for enhanced cleaning and disinfecting.

Social Distancing:

OSHA provides that employers should develop and implement practices for maintaining social distancing (i.e., 6 feet) between all people. OSHA notes that social distancing practices may change based on community transmission of SARS-CoV-2 and other criteria.

Nonprofit employers should adopt the following measures to accomplish this objective:

• Limit facility and room occupancy to a number of individuals that may accommodated in order to allow for proper distancing;
• Demarcate locations where workers and/or visitors regularly congregate in order to encourage people to observe proper social distancing;
• Post signage to reinforce proper distancing; and
• Post directional signs in hallways/corridors where the width restricts movement and limits social distancing

Identification and Isolation of Sick Employees:

OSHA recommends that employers adopt practices that enable employees to self-monitor or screen for symptoms associated with COVID-19, and isolate any employees who present symptoms associated with COVID-19 from the workplace.

Nonprofit employers should take the following steps in order to address sick employees and reduce the risk of transmission to others:

• Request that employees evaluate themselves for symptoms associated with COVID-19 before coming to work, and to stay home if they present any such symptom or are feeling sick; and
• Establish a protocol for managing people who become ill in the workplace, and cleaning and disinfecting spaces the ill person occupied in order to reduce the risk of exposing others to the virus.

Employees’ Return to Work after Illness or Exposure:

OSHA advises that employers should adopt a standard for returning employees to work after workers recover from COVID-19 or complete a self-quarantine after potential exposure to the virus.

Nonprofit employers should undertake the following measures to safely return employees to work after infection or possible exposure:

• Follow CDC guidance for discontinuing self-isolation and returning to work after illness, or discontinuing self-quarantine and monitoring after exposure, as appropriate for the workplace: and
• Ensure workers who have been exposed to someone with COVID-19 routinely monitor themselves or receive monitoring, including for symptoms associated with COVID-19 in accordance with CDC guidance.

Nonprofit employers should also be sure to consult and follow any applicable county public health orders regarding employees with or exposed to COVID-19.

Workplace Controls:

CDC provides that, based on specific hazard assessments, employers should adopt certain engineering and administrative controls, safe work practices, and personal protective equipment (“PPE”) in order to reduce the risk of transmission.

Employers should adopt the following measures to improve health and safety in the workplace by selecting and implementing appropriate engineering controls (e.g., physical barriers/shields to separate workers, enhanced ventilation), and administrative controls (e.g., staggering work shifts, limiting breakroom capacity, practicing social distancing, replacing in-person meetings with video-conference calls, ensuring workers wear appropriate face coverings) and providing and ensuring that employees use the appropriate PPE, identified through hazard assessments and in accordance with OSHA standards. (See 29 CFR 1910, Subpart I, and OSHA and CDC guidance on use of PPE.)

Workplace Flexibilities:

OSHA recommends that employers remain flexible in the enforcement of certain workplace policies, including those related to teleworking and sick leave, in order to may improve worker safety.

Employers should evaluate existing policies and, if needed, consider new ones that facilitate appropriate use of telework, sick or other types of leave, and other options that help minimize workers’ exposure risks.

Employee Training:

OSHA advises that employers develop and adopt practices for ensuring employees receive training on the symptoms and risk factors associated with COVID-19; where, how, and to what sources of COVID-19 employees might be exposed in the workplace; and how to prevent the spread of virus at work.

Nonprofit employers should train their employees about their risks of COVID-19, what the employer is doing to protect them, and how they can protect themselves.

Anti-Retaliation Measures:

OSHA also reminds employers that it is unlawful to retaliate or take adverse action against an employee who adheres to OSHA guidelines or raises workplace safety and health concerns.

In order to ensure compliance with federal and state law, employers should take the following proactive measures:

• Ensure that workers understand their rights to a safe and healthy work environment, and who to contact in the event that they have questions or concerns about workplace safety and health, and prohibitions against retaliation for raising workplace safety and health concerns;
• Ensure workers understand their right to raise workplace safety and health concerns and seek an OSHA inspection under the Occupational Safety and Health Act; and
• Ensure supervisors are familiar with human resources policies and procedures, as well as with workers’ rights in general.

For all phases of reopening and return to work, OSHA recommends that employers develop and implement policies and procedures that address preventing, monitoring for, and responding to any emergence or resurgence of COVID-19 in the workplace. Finally, employers should be mindful that all legal requirements of the Occupational Safety and Health Act of 1970 and the California Occupational Safety and Health Act continue to apply, including, but not limited to, recording workplace illnesses, such as COVID-19, and that they must also follow all requirements of their local county public health department/orders and the State of California.

LCW is closely monitoring legal developments related to the evolving COVID-19 situation, including guidance regarding the reopening of businesses and the return to work. For additional information and the latest updates, visit: https://www.lcwlegal.com/responding-to-COVID-19.