By James L. Curtis, Ilana R. Morady, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen
Seyfarth Synopsis: Occupational Safety and Health Administration (OSHA) has issued Guidance to assist employers reopening non-essential businesses ensure the safety of their employees and the public during the evolving coronavirus pandemic.
The new Guidance on Returning to Work (Reopening Guidance) is the most comprehensive update from OSHA since it released its Guidance on Preparing Workplaces for COVID-19 at the very beginning of the coronavirus pandemic. OSHA’s new and prior guidance should be complemented by the Centers for Disease Control and Prevention’s (CDC) Guidelines for Opening Up America Again. OSHA notes that its new “guidelines provide general principles for updating restrictions originally put in place to slow the spread of the coronavirus. During each phase of the reopening process, employers should continue to focus on strategies for basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training.”
OSHA initially suggests that employers continue to consider ways to use workplace flexibilities, such as remote work and alternative business operations, to provide goods and services to customers.
If remote work is not possible for a business, the Reopening Guidance states that “for all phases of reopening, 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. Employers should continue these practices to the extent possible to help prevent COVID-19 from emerging or resurging in their workplace.”
The Guidance suggests that employers adopt what it refers to as “Guiding Principles” such as:
- Hazard assessment, including practices to determine when, where, how, and to what sources of SARS-CoV-2 workers are likely to be exposed in the course of their job duties.
- Hygiene, including practices for hand hygiene, respiratory etiquette, and cleaning and disinfection.
- Social distancing, including practices for maximizing distance between all people (including workers, customers, and visitors) to the extent feasible.
- Identification and isolation of sick employees, including practices for worker self-monitoring or screening, and isolating and excluding from the workplace any employees with signs or symptoms of COVID-19.
- Return to work after illness or exposure, including after workers have symptoms or a positive diagnosis of COVID-19, or complete recommended self-quarantine after exposure to a person with COVID-19.
- Controls, including engineering and administrative controls, safe work practices, and personal protective equipment (PPE) selected as a result of an employer’s hazard assessment.
- Workplace flexibilities, including those concerning remote work (i.e., telework) and sick leave.
- Training, including practices for ensuring employees receive training on the signs, symptoms, and risk factors associated with COVID-19; where, how, and to what sources of SARS-CoV-2 employees might be exposed in the workplace; and how to prevent the spread of SARS-CoV-2 at work.
- Anti-retaliation, including 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.
OSHA reminds employers that its Reopening Guidance is not a standard or regulation and does not create new legal obligations. However, employers who fail to follow the Reopening Guidance, or other OSHA or CDC guidance, could potentially be cited under OSHA’s General Duty Clause, which requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.