Updated: OSHA Issues General Guidance on Returning to WorkFebruary 3, 2021
July 7, 2020 Update. On July 2, 2020, OSHA published Frequently Asked Questions and Answers (“FAQs”) regarding its COVID-19-related guidance. Among other things, the FAQs clarify that OSHA “generally recommends” that employers encourage their employees to wear face coverings while at work and provide guidance on the steps employers should take after learning that an employee has tested positive for COVID-19. This guidance has been incorporated in this updated post.
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On June 18, 2020, OSHA issued guidance to assist employers and workers in safely returning to work and reopening businesses deemed non-essential. The guidance, which is intended to supplement the U.S. Department of Labor and U.S. Department of Health and Human Services’ previously developed Guidance on Preparing Workplaces for COVID-19 and the White House’s Guidelines for Opening Up America Again, provides a three-phase outline for returning to the workplace. OSHA reiterates the importance of employers following and monitoring the applicable federal, state and local rules and guidance regarding stay-at-home orders and reopening businesses.
The guidance states that employers should monitor state and local health department communications to understand how the communities in which their workplaces are located are progressing through the reopening phases identified in the White House’s Guidelines for Opening Up America Again (“White House Reopening Guidelines”), which provides general principles for phased business reopening. Employers should also be sure to review and comply with other applicable federal, state and local guidelines.
Accordingly, the guidance provides that “in general,” employers should “consider” the below actions depending on the phase of the White House Reopening Guidelines applicable to their workplace.
- Phase One. During Phase One of the White House Reopening Guidelines, employers should consider:
- Making telework available, where possible and feasible;
- For employees returning to the workplace, limiting the number of people in the workplace;
- Maintaining “strict” social distancing practices;
- Providing “accommodations (i.e., flexibilities based on individual needs)” to workers at higher risk of severe illness, as defined by the U.S. Centers for Disease Prevention and Control (“CDC”);
- Extending “special accommodations” to workers with household members at higher risk of severe illness; and
- Limiting non-essential travel.
- Phase Two. During Phase Two of the White House Reopening Guidelines, employers should:
- Continue to make telework available where possible, but non-essential business travel may resume;
- Resume non-essential business travel;
- Ease limitations on the number of people in the workplace;
- Maintain “moderate to strict” social distancing practices, “depending on the type of business”; and
- Provide accommodations to “vulnerable” workers, as identified in Phase One, above.
- Phase Three. During Phase Three of the White House Reopening Guidelines, employers may resume unrestricted staffing of work sites.
- Hazard Assessment. Develop practices to determine when, where, how, and what sources are likely to expose workers to COVID-19 in the course of their job duties.
- Hygiene. Develop practices for hand hygiene, respiratory etiquette, and cleaning and disinfection.
- Social Distancing. Develop practices for maximizing to the extent feasible and maintaining distance between all people, including workers, customers and visitors.
- Identification of Sick Employees. Develop practices for worker self-monitoring or screening, and isolating and excluding from the workplace any employees with signs or symptoms of COVID-19.
- Returning to Work After Illness or Exposure. Develop practices for returning workers recovering from COVID-19, or who have completed recommended self-quarantine after exposure to a person with COVID-19, to the workplace.
- Controls. Implement engineering and administrative controls, safe work practices, and personal protective equipment (“PPE”) selected as a result of an employer’s hazard assessment, discussed above and below.
- Workplace Flexibilities. Develop policies for remote work (i.e., telework) and sick leave.
- Training. Develop practices for ensuring employees receive training on the signs, 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 COVID-19 at work.
- Anti-Retaliation. Develop practices for ensuring that no adverse or retaliatory action is taken against an employee who adheres to these guidelines or raises workplace safety and health concerns.
Existing OSHA standards relevant to protecting workings from infection “remain in place.” This includes standards for PPE (29 CFR 1910.132), Respiratory Protection (29 CFR 1910.134), and Sanitation (29 CFR 1910.141). Employers also have a “responsibility to provide a safe and healthful workplace that is free from serious recognized hazards under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970.” Employers may wish to review Appendix A of the OSHA guidance for a chart summarizing the general industry rules applicable to protecting workers from exposure to COVID-19.
The guidance also provides answers to employers’ frequently asked questions, which are summarized below. The answers provided by OSHA are based on Federal OSHA Standards, which may differ from other federal, state and local laws.
- Worksite COVID-19 Testing. OSHA permits employers to conduct worksite COVID-19 testing, “if applied in a transparent manner applicable to all employees (i.e., non-retaliatory).” Employers should be “cautious” about negative test results due to “limitations of current testing capabilities.” Accordingly, employers should not presume that individuals who test negative present no hazard to others. OSHA recommends that workers tell their supervisors if they have tested positive for COVID-19 so that employers can take steps, such as cleaning and disinfection, to protect other workers.
- OSHA does not require employers to notify other employees if one of their coworkers gets COVID-19. However, employers must take appropriate steps to protect other workers from exposure to the virus, for example, by cleaning and disinfecting the work environment, notifying other workers to monitor themselves for symptoms of COVID-19, or implementing a workplace screening program (discussed below) for symptoms of COVID-19. The CDC Guidance for Businesses and Employers, on the other hand, recommends employers determine which employees may have been exposed to the virus and inform employees of their possible exposure to COVID-19 in the workplace, and cautions employers to maintain confidentiality as required by the Americans with Disabilities Act in doing so.
- In addition to this recent guidance from OSHA, employers should familiarize themselves with the applicable state and local guidance regarding returning infected employees to the workplace and notifying local and state health officials regarding infected employees, which may impose additional obligations on employers in certain circumstances.
- Temperature Checks and Health Screening. OSHA permits temperature checks or other health screenings of workers “if applied in a transparent manner applicable to all employees (i.e., non-retaliatory).” These measures may include daily in-person or virtual “symptom checks,” health questionnaires, self-checks and self-questionnaires, and should comply with the requirements of the Americans with Disabilities Act, which are discussed in our recent memorandum.
- Remote Temperature Checks. OSHA notes that “temperature screening efforts are likely to be most beneficial when conducted at home by individual workers, with employers’ temperature screening plans relying on workers’ self-monitoring and staying home if they have a fever or other signs or symptoms of illness, rather than employers directly measuring temperatures after workers arrive at the work site.”
- Recordkeeping Requirements. If an employer does implement health screening measures, and creates records of that information, such records may qualify as medical records under the Access to Employee Exposure and Medical Records standard (29 CFR 1910.1020), and the employer would be required to retain those records for the duration of each worker’s employment plus 30 years, and follow confidentiality requirements. Employers are not required to make a record of temperatures when they screen workers, and “temperature records do not qualify as medical records under the Access to Employee Exposure and Medical Records standard unless they are made or maintained by a physician, nurse, or other health care personnel, or technician.”
- Protection of Personnel Conducting Screening. Personnel administering COVID-19 tests, temperature checks or other health screenings “must be protected from exposure” to the virus by following the OSHA hierarchy of controls.
- Returning Employees Who Had COVID-19 to Work. Employers should refer to CDC guidance about the discontinuation of isolation for people with COVID-19 to determine when employees who have had COVID-19, or illness consistent with COVID-19, may return to work. Employers should also refer to state and local guidance on this subject depending on where their workplace is located.
- Personal Protective Equipment. To determine whether employees need to wear PPE, employers “must conduct a hazard assessment in accordance with OSHA’s PPE standard (29 CFR 1910.132), if applicable, to determine the PPE requirements for their unique work site.” Under this standard, employers must determine if PPE is necessary for employees to work safely after considering whether engineering and administrative controls and safe work practices (i.e., social distancing or the use of cloth face coverings) can effectively mitigate identified hazards.
- Employers “should consider modifying worker interaction” to reduce the need for PPE. If PPE is necessary for certain work tasks, employers should consider delaying those work tasks “until the risk of [COVID-19] subsides or utilize alternative means to accomplish business needs.” If PPE is needed, but not available, and employers cannot identify alternative means to accomplish business needs safely, the work tasks must be discontinued.
- Cloth face coverings are not PPE, but “can be worn to reduce the spread of potentially infectious respiratory droplets from the wearer to others.” Employers may consider requiring cloth face coverings to be worn in the workplace as an administrative control, and OSHA “generally recommends” that employers encourage workers to wear face coverings at work. Employers, however, have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances present at the work site. For some workers, an employer may determine that wearing a face covering would present or exacerbate a workplace hazard, and therefore decline to require face coverings. Employers requiring face coverings still need to ensure that workers comply with social distancing protocols.