Audit, Compliance and Risk Blog

How can employers protect workers against coronavirus exposures? In expanding parts of the country, most employers do so by complying with applicable Shelter in Place orders. Workplaces still in operation face more complicated occupational health situations. 

The Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC; directly and through its subsidiary National Institute for Occupational Safety and Health (NIOSH)) and other occupational health agencies issue guidelines for workplace safety, which can be used in locations that are still open. (This approach is typical; I wrote about their Zika Virus guidelines HERE). In addition, the Equal Employment Opportunity Commission (EEOC) provides interpretive guidance on how to apply disabilities and anti-discrimination laws to the design and implementation of protective programs.

As I write this, guidelines for “social distancing” are ubiquitous, and more and more areas are simply closing down large swathes of their economy by directing most people to suspend their normal activities – including work – and Shelter in Place. But the agencies noted above have also issued guidelines for continuing workplace activities despite the pandemic. The rest of this note summarizes agencies’ coronavirus guidance.

CDC Interim Guidance for Businesses and Employers

The CDC issued the first US guidelines, during the period when coronavirus was expected to be widespread but disruptive at the level of a bad influenza year. These guidelines call for the following:

• Actively encourage sick workers to stay home – including flexible application of sick leave and home work policies

• Separate sick employees – i.e., from other employees at the worksite, if they do arrive at work and don’t accept advice to return home

• Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees

• Perform routine environmental cleaning – i.e., wipe down frequently-used surface with disinfectants, and provide disposal wipes to facilitate additional cleaning

• Advise employees before travelling to take certain [CDC-recommended] steps

• Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19 – risk assessments if individual employees are exposed to infected people outside work, and of all exposed employees if one is confirmed to be infected

CDC’s Coronavirus Disease 2019 website also provides extensive additional information.

OSHA Guidance on Preparing Workplaces for COVID-19

OSHA provides a variety of general and coronavirus-specific information, including a 31-page “Guidance on Preparing Workplaces for COVID-19” (OSHA Guidance) issued in March 2020. It provides “traditional infection prevention and industrial hygiene practices”, and addresses “the need for employers to implement engineering, administrative, and work practice controls and personal protective equipment (PPE), as well as considerations for doing so….” As its title suggests, the OSHA Guidance provides planning guidance to help employers to identify risk levels in workplace settings and to determine any appropriate control measures. Doing so should facilitate ongoing protective efforts.

The OSHA Guidance provides the following information

• Summary of symptoms of infection, and how the virus spreads

• How a pandemic outbreak can affect a workplace – which accurately projects workplace absenteeism, and disruptions to supply chains (in and/or out depending on workplace activities) and to commerce

• Steps employers can take to reduce and manage worker exposures

• Develop an infectious disease preparedness and response plan, including sources and levels of risk from workers and other contacts (suppliers, customers, etc.)

• Develop contingency plans for responding to a variety of disease outbreaks, and the personnel and market impacts and associated governmental responses

• Prepare to implement basic infection prevention measures – sick workers stay home, healthy workers wash hands, practice enhanced housekeeping (e.g., surface cleaning) and interpersonal distance practices

• Develop policies and procedures for prompt identification and isolation of sick people 

• Develop, implement, and communicate workplace flexibilities and protections to and behalf of employees

• Implement workplace controls – engineering, administrative, and work practice-related; include PPE

• Follow existing OSHA standards – PPE, respiratory protection (I discussed this HERE), bloodborne pathogen (BBP; I discussed this HERE), General Duty Clause (I discussed this HERE)

• Discussion of classification of employee exposures based on resulting risks (low, medium, high, very high), evaluation of employee jobs using these risks, and appropriate risk controls for each category

• Identification of OSHA informational and practical resources

This OSHA Guidance provides a significant primer to employers who may still be organizing their responses. 

EEOC guidance application of Americans with Disabilities Act and Rehabilitation Act protections

On March 19, EEOC updated its guidance “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.” EEOC’s main message as of that date was that the acts’ protections continue to apply, but don’t interfere with or prevent employers from following coronavirus-related guidelines and suggestions made by the CDC or public health authorities. EEOC also references the latest version of its guidance on “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act,” which was focused on influenza when initially published but has been revised to cover coronavirus as well. This guidance includes discussion of:

• Restrictions on disability-related medical evaluations and disability-related inquiries related to hiring decisions remain in place

• Coronavirus infection is a “direct threat” to workplace safety, so employers can

• screen potential employees after making initial hiring decisions

• ask employees about infections or symptoms reflective of infections before allowing them in the workplace

• test employees and send infected employees away

• Disruptions to workplace functions during the pandemic may justify delays in disability-related discussions, negotiations and accommodations

These guidelines validate and therefore reinforce employer programs for testing and inquiries, to attempt to keep infected employees away from workplaces. Readers should note that other labor and employment laws are also relevant – for example, the Families First Coronavirus Response Act (signed by President Trump on March 18) includes temporary expansion to medical leave requirements.

What’s next?

As the coronavirus pandemic spreads, employers whose workplace remain open will need to conduct the assessment, planning and implementation activities discussed in these agencies’ guidelines. Once this episode passes, all employers would be well served to establish practices and programs similar to those discussed here, in order to be better able to respond to the next such outbreak – remember that coronavirus is the most extreme to date, but that Zika, SARS and nanovirus outbreaks have also occurred recently, and that seasonal influenza strains are sometimes especially virulent and/or widespread.

As I write this note, state requirements are proliferating and new federal requirements are under ongoing discussion. Employers will need to track the regulatory requirements along with the actual progress of the pandemic.

Self-Assessment Checklist

Does the organization have operations that are still open and staffed by employees or other workers?

If so, has the organization assessed these operations for coronavirus risks to employees?

If so, has the organization implemented information and precautionary measures?

• Do precautionary measures include those recommended by the CDC and OSHA guidelines, for all employees and particularly for those identified as being at higher potential risk?

• Have precautionary measures been evaluated to ensure they meet the employer’s responsibilities under ADA and other federal, state and local anti-discrimination requirements? 

Has the organization reviewed applicable federal, state and local requirements (including ongoing requirements such as OSHA standards, and short-term Shelter in Place and other coronavirus-related mandates)?

Where Can I Go For More Information?

• Coronavirus Disease 2019 webpage  - https://www.cdc.gov/coronavirus/2019-ncov/index.html

• Interim Guidance for Businesses and Employers - https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

• COVID-19 webpage - https://www.osha.gov/SLTC/covid-19/

• Guidance on Preparing Workplaces for COVID-19 (3990-03 2020) - https://www.osha.gov/Publications/OSHA3990.pdf

EEOC

• “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” (with links to other resources) - https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

Additional international resources:

• World Health Organization Coronavirus webpage - https://www.who.int/health-topics/coronavirus

• European Agency for Safety and Health at Work coronavirus webpage - https://osha.europa.eu/en/highlights/coronavirus-disease-covid-19-outbreak-and-workplace-safety-and-health?pk_campaign=oshmail_2020_special&_cldee=dGVpQGl4Lm5ldGNvbS5jb20%3d&recipientid=lead-d4a9f0d88515e91180dd005056ba280a-5024a53cd7734fa0bf74433fa3767f48&esid=fcca9951-8164-ea11-9f58-005056b81fae

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

Image by Gerd Altmann from Pixabay