On June 18, 2020, the U.S. Occupational Safety and Health Administration (OSHA) issued new guidance to assist businesses deemed “non-essential” during the COVID-19 pandemic as they reopen their workplaces. OSHA’s new “Guidance on Returning to Work” sets forth a number of basic principles that OSHA recommends guide employer actions, including specific examples. The document also reminds readers that responsibilities always apply under OSHA’s Employer’s General Duty Clause, references a number of existing OSHA standards that apply to re-opening activities and reopened workplaces, and identifies other sources of guidance and requirements.
Most of the guidance consists of a number of “guiding principles” applicable to hazard evaluation and consequential work activities. OSHA provides a number of examples to illustrate what each principal means and how it can be applied. The principles are [in direct quotation from the document]:
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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.
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Hygiene, including practices for hand hygiene, respiratory etiquette, and cleaning and disinfection.
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Social distancing, including practices for maximizing to the extent feasible and maintaining distance between all people, including workers, customers, and visitors. Six feet of distance is a general rule of thumb, though social distancing practices may change as changes in community transmission of SARSCoV-2 and other criteria prompt communities to move through the reopening phases.
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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.
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Return to work after illness or exposure, including after workers recover from COVID-19 or complete recommended self-quarantine after exposure to a person with COVID-19.
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Controls, including engineering and administrative controls, safe work practices, and personal protective equipment (PPE) selected as a result of an employer’s hazard assessment.
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Workplace flexibilities, including those concerning remote work (i.e., telework) and sick leave.
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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.
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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.
What other guidance does this document provide?
The Guidelines document also presents a list of existing OSHA standards and guidance relevant to employers’ reopening issues. These include OSHA’s Sanitation Standard (which I discussed HERE), Respiratory Protection Standard (I wrote about recent revisions HERE), and personal protective equipment (PPE) requirements.
This document also discusses provisions issued by OSHA and other agencies for employers to conduct workplace temperature checks and COVID-19 screening tests. These include the Centers for Disease Prevention and Control (CDC) and the Equal Employment Opportunity Commission (EEOC).
What are the three phases of reopening?
OSHA follows the common approach by defining phases of reopening. In general, during:
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“Phase 1 “Businesses should consider making telework available, when possible and feasible with business operations. For employees who return to the workplace, consider limiting the number of people in the workplace in order to maintain strict social distancing practices. Where feasible, [offer appropriate] accommodations….
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Phase 2: “Businesses continue to make telework available where possible, but non-essential business travel can resume. Limitations on the number of people in the workplace can be eased, but continue to maintain moderate to strict social distancing practices [and accommodations]….
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Phase 3: Businesses resume unrestricted staffing of work sites.”
The guidance reminds readers that the pandemic’s progress is uneven, and re-expansions are occurring, so employers need to continue evaluating which phase(s) are most appropriate to workplace activities.
What now?
Rates of COVID-19 infections are falling in some areas but rising in others, while political and economic actors pursue reopening strategies. Depending where your organization has locations(s), you may be closing, opening, or pondering your next steps. This OSHA Guidance provides a reasonable outline of activities, to consider. You should also review OSHA’s COVID-19 enforcement policy, which I recently discussed (HERE).
Self-Assessment Checklist
Has the organization closed any of its operations in response to the COVID-19 pandemic?
Does the organization have operations that are still open and staffed by employees or other workers?
Has the organization assessed its closed operations for COVID-19 risks to employees, in anticipation of reopening?
Has the organization implemented (or at least prepared) adequate information and precautionary measures (e.g., equipment and procedures recommended by OSHA, CDC and EEOC)?
Is the organization ready to assess employee illnesses for possible COVID-19 infections, and if any arise to be able to evaluate whether the illnesses are work-related?
Where can I go for more information?
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com