OSHA Guidance for Returning to Work Tells Employers What is Needed for a Hazard Free Workplace

On June 17, 2020, the Occupational Safety and Health Administration issued a Guidance on Returning to Work. This guidance is not a Standard or Regulation, and the Administration makes clear that this Guidance does not create any new legal obligations. However, it is imperative for businesses to abide by the terms of this Guidance. As we know, the General Duty Clause of the Occupational Safety and Health Act (“OSHA”) requires that all employers provide their employees with a, “workplace free from recognized hazards likely to cause death or serious harm.” Any litigation based on workplace safety as it relates to COVID will focus on the employer’s duty to the employees. This Guidance, along with the other state specific guidances, outline the standard of care for employers.

Below is a summary and analysis of the Guidance. Employers must remember that it is imperative and required that they abide by the Executive Orders and Guidance set out by the state where they conduct business. It is not enough for employers to rely on this Guidance alone.

Planning For Reopening

The Guidance is intended to supplement the White House’s Guidelines for Opening up America Again. Briefly, the White House Guidelines set out three phases of re-opening. The first phase is shelter in place. The second phase is where vulnerable individuals shelter in place, and the third phase is where vulnerable individuals may resume public interactions while practicing social distancing. In the third phase, employers can resume unrestricted staffing of worksites.

It must be noted, that each state has their own re-opening plan. As discussed in my previous blog, Pennsylvania has a phased reopening plan, where each county is either in the red phase, yellow phase or green phase. Other states follow a similar plan, for instance New York has four phases of reopening.

Employer Obligation to Stay Current With State Requirements

This Guidance is meant to supplement the White House Guidance, so it delineates employer obligations per each Phase of the White House Guidance. The general notion of phased re-opening is reinforced by the states; however, most states have their own re-opening plans. Because each state has its own requirement, the Guidance requires that, “all employers…monitor [State, Local, Territorial, and Tribal (“SLTT”)] health department communications to understand how the communities in which their workplaces are located are professing through the reopening phases in the [White House Guidelines].” This phrase memorializes the obligation of employers to stay up-to-date with their state’s requirements.

  • Phase 1

    • Businesses should consider making telework available

    • For employees who return, limit the number of employees in the workplace to maintain strict social distance practices.

    • The Guidance suggests accommodating workers that are at a higher risk of severe illness, including elderly individuals and those with a serious underlying health condition.

      • NOTE: It must be noted that Employers must make accommodations in accordance with the Americans with Disabilities Act (“ADA”). As discussed in my previous blog, before acting, employers must ensure they are offering accommodations in accordance with the ADA.

    • The Guidance further recommends that employers accommodate elderly individuals.

      • NOTE: Employers again must remember that they need to act in compliance with the Age Discrimination Employment Act (“ADEA”). The EEOC specifically addresses this issue in their FAQ. The ADA prohibits employers from blanket conditions placed on employees who are 65 years old or older. However, the EEOC explicitly states that employers, “are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.”

    • Non-Essential travel limited

    • Businesses should consider extending special accommodations to workers with household members at higher risk of severe illness.

  • Phase 2

    • Businesses continue to make telework available where possible

    • Non-Essential business travel can resume

    • Limitations on individuals in the workplace can be eased, but continue strict social distancing

    • Continue to accommodate vulnerable workers

  • Phase 3

    • Businesses resume unrestricted staffing of work sites.

The Guidance is explicit in that all employers should develop and implement policies and procedures that “address preventing, monitoring for, and responding to any emergence or resurgence of COVID-19 in the workplace or community.” Per the Guidance, when crafting COVID-19 policies and procedures, employers should do the following:

  • Conduct a Hazard Assessment. Employers should assess job tasks and/or job categories and determine which tasks/job categories involve an occupational exposure.

  • Hygiene. Provide soap, water, paper towels for workers, customers and visitors. Encourage frequent handwashing. Provide hand sanitizer for workers if they cannot readily wash their hands. Disinfect high-traffic areas.

  • Social Distancing. Limit occupancy to a number of workers that can safely work while practicing social distancing. Provide posters, floor markings and the like to outline 6 ft. zones. Post signs reminding employees of social distancing guidelines.

  • Identification and Isolation of Sick Employees. Request employees to evaluate themselves for signs/symptoms of COVID. Establish protocol managing employees who become ill in the workplace. The Guidance specifies that the guidance should include, “details about how and where a sick person will be isolated (in the event they are unable to leave immediately) while awaiting transportation from the workplace, or their home or to a health care facility.” The protocol should also include cleaning procedures. The Guidance specifies that “employers may need to collaborate with SLTT health officials” for purposes of contact tracing and notification of COVID-19.

  • Return to Work After Illness or Exposure. The employer’s policy must follow the CDC Guidance regarding Return to Work.

  • Controls. Employers must select and implement appropriate controls:

    • Engineering Controls: physical barriers, shields, enhanced ventilation

    • Administrative Controls: staggering work shifts, limiting breakroom capacity, social distancing, replace in-person meetings with video conference calls, face coverings.

    • PPE

The Guidance elaborates on the above by reminding employers of three guiding principles:

  • Flexibility. The Guidance reminds employers that they must be flexible and communicate with their employees about such workplace flexibilities if needed. Such “flexibilities” include facilitating telework, sick leave, or other types of leave. Employers should evaluate their policies and consider amending policies to the extent they are needed to facilitate work.

  • Training. OSHA guides employer to provide training to employees about their risk of exposure to COVID-19. The training should include information for employees about PPE.

  • Anti-Retaliation. Employers should remind their employees of their right to a safe and healthful work environment. Inform employees of who they should contact with questions or concerns about safety and health, and remind the employees that they cannot be retaliated against for raising such concerns.

Guidance Outlines What Employers Must Do to Provide a Safe and Healthful Workplace

While this Guidance is fairly general when compared to the detailed requirements set forth by states, such as Pennsylvania, it is important. When facing any claims for a hazardous work environment, it is helpful for employers to be armed with a COVID-19 Policy that demonstrates the protocol and procedure implemented to protect their workers.

Employers should contact counsel regarding drafting COVID policies and conduct office training.

Susie Cirilli