On June 17, 2020, the Federal Agency for Safety and Health at Work ("OSHA") issued its "Guidelines for Returning to Work". These new guidelines are intended to supplement the earlier “Guidelines for preparing jobs for COVID-19”, which OSHA published in March. Most nonessential companies across the country have already reopened and brought back at least part of their workforce. However, given the continuing risk of occupational exposure to COVID-19, employers must continue to monitor and follow new, evolving federal, state, and local guidelines to protect worker safety and health. The new OSHA guidelines include “guiding principles” that OSHA recommends that employers include in their reopening plans. In addition, the new guide provides OSHA answers to frequently asked questions about testing and checking employees and identifies specific OSHA standards and requirements that apply to minimize occupational exposure to COVID-19. Since much of the new guidelines address mitigation measures that many employers have already implemented, this article is intended to help employers understand certain guidelines and concerns in the guidelines that are new or may have been overlooked.
Guiding principles for reopening plans
When discussing employers' plans to reopen, the guidelines generally instruct employers to reopen according to the three different phases contained in the White House guidelines for reopening America. Most employers are currently in Phase 1, which follows strict social distancing practices and where possible allows teleworking to limit the number of employees in the workplace. Phase 1 also includes the limitation of non-essential business trips and the establishment of accommodation for workers at higher risk of serious illnesses, e.g. B. People over 65 years of age or with serious health problems. In phase 2, employers should continue to accept vulnerable workers and, if possible, allow teleworking. However, phase 2 employers can allow non-essential business trips to be resumed and the number of employees in the workplace limited, while maintaining moderate to strict social distancing practices. Finally, in the final phase, phase 3, companies can resume full occupancy. A change in outbreak conditions or a resurgence in the community can force employers to change certain infection control measures or even return to an earlier phase.
Based on the evolving outbreak conditions, OSHA instructs employers' reopening plans to include and include the following non-exhaustive list of guiding principles: risk assessment, basic hygiene, social distancing, identifying and isolating sick workers, returning from salvaged or exposed workers, job controls and flexibility, training and anti-retaliation. Most employers are familiar with these principles from previous guidelines issued by OSHA and the Centers for Disease Prevention and Control (“CDC”). However, reviewing the new guidelines will ensure that current infection prevention and control measures are adequate.
COVID-19 risk assessments
Employers should pay particular attention to OSHA's recommendation that all employers conduct a COVID 19 risk assessment (in fact, the California Department of Health and Safety at Work requires that this be done). A risk assessment requires employers to determine when, where, how and what sources of COVID-19 workers they are likely to be exposed to in the course of their work. The assessment should take into account all work tasks performed by the company's employees and identify specific tasks or occupational groups that involve occupational exposure to COVID-19. The risk of occupational exposure should include not only the exposure of employees through close contact or common spaces / surfaces, but also the exposure of the public (e.g. customers, visitors, sellers). Once assessed, employers can establish specific technical / administrative controls, safe work practices, and / or personal protective equipment (“PPE”) to reduce the risk of exposure for each job or category. Employers may also need to re-evaluate when additional workers return to work, which may reduce the effectiveness of previous measures and increase the risk of exposure.
OSHA answers to frequently asked questions
The new guidelines include OSHA's answers to some frequently asked questions, including questions about tests and reviews previously answered by the Equal Employment Opportunity Commission ("EEOC"). The following answers summarize the position of OSHA and identify additional relevant information that may be of interest to employers.
Q: Can employers perform COVID 19 tests on site?
A: Yes, neither the Occupational Safety and Health Act ("Occupational Health and Safety Act") nor the OSHA standards prohibit employers from testing for COVID-19 when applied in a transparent manner that applies to all employees (i.e. H. Not retaliation). However, OSHA advises employers to exercise caution in the event of negative test results, as current testing options are limited. In addition, on June 17, 2020, the EEOC issued guidelines prohibiting the execution of COVID-19 antibody tests (also known as "serological tests"), as these violate the law on Americans with disabilities ("ADA"). For more information on the latest EEOC guidelines on testing, employers can read the article available here.
Q: Can employers do site temperature tests or other health checks?
A: Yes, neither the Occupational Health and Safety Act nor the Occupational Health and Safety standards prohibit employers from searching for COVID-19 if they are applied in a transparent manner and apply to all workers. In addition, the guidelines point out that while temperature screening can be part of a comprehensive health monitoring program, screening alone has limited use because people with COVID-19 can spread the virus, too if they have no symptoms such as high temperatures. OSHA also recommends that temperature tests performed by employees at home are likely to be more beneficial than preventive health checks at work, particularly in connection with sick leave policies that encourage sick workers to stay at home. Employers can find further information on how to carry out temperature tests on workers in the article available here.
Q: What OSHA requirements does an employer need to consider when performing health, temperature, or COVID-19 tests?
A: For employers who produce written or electronic records of the information obtained through health or temperature tests, OSHA recommends that these records be medical records in accordance with the OSHA standard for access to exposure and medical records of employees ("AEEMR “) (29 CFR §) can apply 1910.1020). According to the AEEMR standard, employers must keep medical records for the duration of the employee's employment plus 30 years while maintaining the confidentiality required by ADA. Alternatively, OSHA points out that employers do not have to keep a temperature record and can simply confirm a temperature measurement in real time instead. The guidelines also clarify that temperature records are not considered medical records under the AEEMR standard unless they are created or maintained by a doctor, nurse, or other medical personnel or technician. As a result, documentation of an employee's results from COVID 19 virus tests performed by medical personnel or technicians is likely to fall under the AEEMR standard. OSHA also points out that any personnel who carry out screenings, temperature tests or tests must be adequately protected against exposure through suitable technical and administrative controls, safe working practices and PPE.
Q: How do I know if employees need PPE?
A: OSHA recommends employers to carry out a risk assessment according to the OSHA PSA standard (29 C.F.R. § 1910.132), if necessary, in order to determine the appropriate PPE required for their respective job. The risk assessment requires employers to determine whether PPE (such as gloves, surgical masks, and face shields) are required because technical or administrative controls and safe work practices, including social distance or the use of facewear, cannot effectively reduce the risk of the COVID- 19 exposure. The guidelines indicate that the task must be stopped if PPE is needed for a task but is not available and employers cannot identify alternative means of safely performing the task. The guidelines also clarify that fabric face covers are not PPE and the requirements for wearing fabric face covers are administrative controls. Employers who are confused about the differences between fabric coverings, surgical masks and respiratory masks should consult the OSHA mask website.
Applicable OSHA standards and requirements
Appendix A of the guidelines contains specific OSHA standards that may be relevant to the reopening of employers, including the AEEMR and PSA standards mentioned above, and how these standards are used to prevent potential exposure, risk assessments, implementation programs, job controls, housekeeping, training and Records apply and prohibitions of retaliation. Employers should review Appendix A and the underlying OSHA standards, or the standards in any government plan approved by OSHA, to ensure that they are compliant.
Important insights from the new OSHA instructions
Like the previous OSHA guidelines on preparing the workplace to deal with COVID-19, the new guidelines on returning to work are not a standard or a requirement and therefore do not create any new legal obligations. Instead, the guidelines are designed to help employers create a safe and healthy job. The OSHA General Mandatory Clause requires employers to provide their workers with a job that is free of recognized hazards that can result in death or serious physical damage, including exposure to COVID-19. Accordingly, savvy employers should review the recommendations contained in the new guidelines and ensure that they do the following:
- Carry out a COVID 19 risk assessment and document it if the employer has not yet done so.
- Continue to monitor all federal, state, local, or industry-specific COVID-19 guidelines, and update infection prevention and control measures in the employer's COVID-19 response and action plan.
- Identify control measures that can be eased if the employer moves to later stages of reopening and determine when control measures should be relaxed or reinstated.
- Review and determine how OSHA and government OSHA standards and requirements apply to the workplace of the employer, e.g. B. whether the AEEMR standard applies if the employer carries out health examinations or tests of employees.
Employers who have questions or concerns regarding the implementation of the above measures should contact an experienced OSHA consultant to ensure that they meet all of the increased health and safety obligations and complications caused by the pandemic.
As you know, things change quickly and there is a lack of clear authority or clear rules for implementation. This article is not intended to be a clear, unified guide, but represents our interpretation of the current and general state of affairs. This article does not address the potential impact of the numerous other local, state, and state orders issued in response to the COVID 19 pandemic, including, without limitation, the potential liability in the event of an employee becoming ill, Pay for family vacation or illness requirements and other issues.
Sheppard Mullin endeavors to provide employers with updated information on COVID-19 and its effects on the workplace. Learn about the legal implications of Sheppard Mullin's Coronavirus Insights portal, which now brings together the company's various COVID-19 blog posts on a wide range of topics.