On Thursday, June 18, the Occupational Safety and Health Administration (OSHA) published a pamphlet with “guidance to assist employers and workers in safely returning to work and reopening businesses deemed by local authorities as ‘non-essential businesses’ during the evolving [COVID-19] pandemic.” OSHA states that the guidance does not create new legal obligations and instead is advisory. OSHA’s guidance tracks the three reopening phases identified by the White House in its “Opening Up America Again” guidelines, which in turn are based on proposed state or regional gating criteria.
OSHA’s guidance also identifies the following nine “guiding principles” employers should keep in mind when implementing reopening plans. Employers should consider this as additional guidance to be considered in conjunction with the reopening guidance from the U.S. Centers for Disease Control and Prevention (CDC) as well as state or local law or recommendations.
OSHA notes that changing circumstances in individual communities will impact exposure risks and workplace safety levels. To address those “evolving conditions,” OSHA identifies nine “guiding principles” that employers should address in their reopening plans, and provides examples of how to implement those principles. The principles, which are consistent with CDC guidance, are as follows:
- Hazard Assessment: Determine when, where, how and to what sources of novel coronavirus workers are likely to be exposed in the course of their job duties. Examples for implementation include breaking down tasks by exposure levels and tracking outbreak conditions in the community. Here, OSHA expands on prior CDC guidance, which did not have much detail.
- Hygiene: Encourage best hygiene practices and etiquette and provide the means to implement, including soap, water, sanitizer and enhanced cleaning and disinfection practices.
- Social Distancing: Maximize social distancing to the extent feasible, including by limiting occupancy, demarcating flooring, and posting signage.
- Identification and Isolation of Sick Employees: Ask employees to self-evaluate and stay home if not well, and establish protocols for people who are ill in the workplace. The guidelines also states that temperature screening efforts will generally be most effective when conducted at home as opposed to being screened at the workplace.
- Return to Work after Illness or Exposure: Ensure workers who have been exposed self-monitor and/or self-quarantine in accordance with CDC guidance. In many workplaces, temperature checks should be performed by workers who self-monitor at home. The guidelines also remind employers that records of health screenings they conduct might qualify as medical records, which must be retained for the duration of the worker’s employment plus 30 years. Such records would only need to acknowledge the fact of a temperature reading, not the results of the readings (i.e., the actual temperature recorded).
- Controls: Implement engineering controls (such as barriers, shields, and enhanced ventilation) and administrative controls (e.g. staggering shifts, limiting capacity in common areas, ensuring use of personal protective equipment (PPE), and restricting in-person meeting).
- Workplace Flexibilities: Evaluate, update and communicate policies that help minimize workers’ exposure risks, including remote work and sick leave policies.
- Training: Educate workers on the signs, symptoms and risk factors of COVID-19, as well as how to prevent spread—including general practices (such as proper usage of face coverings and the use, cleaning, storage, and disposal of PPE) and site-specific measures the employer is implementing. The guidelines point to OSHA’s PPE standard for employers to use to determine if employees need PPE, advises employers to consider requiring face coverings in the workplace, and recommends that employers reduce worker interactions if there are equipment shortages.
- Anti-Retaliation: Take measures to ensure that no adverse or retaliatory actions are taken against employee who adheres to guidelines or raises workplace safety and health concerns, including by educating employees about their right to a “safe and healthful work environment,” who to contact if they have concerns, and prohibitions against retaliation.