OSHA Issues COVID-19 Return to Work Guidance
July 2, 2020
By: Thomas M. Cunningham
The Federal Occupational Safety and Health Administration (“OSHA”) issued its “Guidance on Returning to Work” on June 17, 2020. The guidance supplements OSHA’s previous “Guidance on Preparing Workplaces for COVID-19” published in March and the White House’s “Guidelines for Opening Up America Again.” Many previouosly-closed or teleworking businesses in Iowa have already reopened and are in the process of returning their workforce to the workplace, usually through a phased return plan. While the publication contains “guiding principles” that OSHA recommends employers incorporate into their reopening plans, as a practical matter, a great deal of the guidance discusses mitigation measures that many employers already have implemented. However, the new guidance provides a useful checklist for re-opening employers. It also provides OSHA’s positions on testing and screening employees and identifies specific OSHA standards and requirements that are applicable to minimizing workplace exposure to COVID-19.
Principles for Phased Reopening
The OSHA guidance recommends employers reopen in accordance with the three distinct phases contained in the White House’s Guidelines for Opening Up America Again.
- Most employers are currently in Phase 1, in which telework should be allowed where feasible so as to limit the number of employees in the workplace and the employer institutes strict social distancing practices. Phase 1 also includes limiting non-essential business travel and making accommodations, where feasible, for workers with a higher risk of severe illness or with serious underlying health conditions.
- In Phase 2, employers may allow non-essential business travel to resume and limitations on the number of employees in the workplace may be eased. However, employers should continue to maintain moderate to strict social distancing practices. Businesses should continue to accommodate vulnerable workers and permit telework where feasible.
- Finally, Phase 3 is the resumption of unrestricted staffing of work sites. Changing outbreak conditions or a resurgence in the community may force employers to modify specific infection control measures or even backtrack to a prior phase.
OSHA recommends that employers’ reopening plans address and include the following (which is a non-exhaustive list): hazard assessment, basic hygiene protocols (including hand hygiene, respiratory ettiquette, and cleaning and disinfection), social distancing, identification and isolation of sick employees, returning recovered or exposed workers to the workplace, workplace controls (including physical barriers/shields and personal protective equipment ("PPE")), remote work, sick leave, training (in the use of PPE, and including respiratory protection where applicable), and anti-retaliation. Most employers are already familiar with these principles from earlier guidances issued by OSHA and the CDC. OSHA clarifies that facemasks are not considered PPE because they protect people from the wearer’s respiratory secretions, instead of protecting the wearer.
COVID-19 Hazard Assessments
A primary takeaway from the OSHA guidance for employers is OSHA’s recommendation that all employers perform a COVID-19 hazard assessment. This assessment is critical if an employer has not done so already. A hazard assessment requires employers to assess all job tasks performed or job categories to determine which ones likely involve risk of exposure to COVID-19. The risk of occupational exposure should include not only exposure from coworkers through close contact or shared spaces/surfaces, but also exposure from the public (e.g., customers, vendors, and other non-employees who may enter the workplace). Based on this assessment, employers can determine specific engineering/administrative controls, safe work practices, and/or PPE to mitigate the risk of exposure for each job category. The COVID-19 hazard assessment likely will have to be a “rolling assesment” as additional workers return to the workplace in phases. In other words, as more workers return, the employer will need to re-assess the continued effectiveness of earlier measures: with greater numbers of employees, are those measures actually decreasing in effectiveness and/or increasing the risk of exposure?
OSHA’s Responses to Frequently Asked Questions
The new guidance includes OSHA’s responses to a number of frequently asked questions, including questions on testing and screening that have been answered previously by the Equal Employment Opportunity Commission (“EEOC”). The following summarizes OSHA’s position on these issues.
- OSHA standards do not prohibit employers from testing for COVID-19, if applied in a transparent manner applicable to all employees (i.e., non-discriminatory or retaliatory). However, OSHA advises employers to act cautiously on negative test results because of the limitations of current testing capabilities. Several commentators have reminded employers the EEOC also issued guidance on June 17, 2020, prohibiting the administration of COVID-19 antibody tests (also called “serologic tests”) because they violate the Americans with Disabilities Act (“ADA”).
- Employers may conduct work site temperature checks or other health screenings, if applied in a transparent manner applicable to all employees. OSHA observes that currently such screenings do not violate its regulations and the EEOC’s current position is that such checks do not violate the ADA as either job-realted and consistent with business necessity or under a “direct threat” analysis. Additionally, the OSHA guidance advises that while temperature screening can be part of a comprehensive program to monitor employee health, screening has limited utility on its own because people with COVID-19 can spread the virus even if they do not exhibit symptoms.
- Employers who create written or electronic records of the information obtained through health screenings or temperature checks are required to maintain those records as medical records under OSHA’s Access to Employee Exposure and Medical Records (“AEEMR”) standard (29 C.F.R. § 1910.1020). Under the AEEMR standard, employers are required to retain medical records for the duration of the worker’s employment plus 30 years while also maintaining confidentiality as required by the ADA. As an alternative, OSHA advises that employers do not need to make a record of temperatures and can instead simply acknowledge a temperature reading in real-time. The guidance also clarifies that temperature records do not qualify as medical records under the AEEMR standard unless they are made or maintained by a physician, nurse, or other health care personnel or technician. OSHA also advises that any personnel administering screenings, temperature checks, or testing, must be sufficiently protected from exposure through appropriate engineering and administrative controls, safe work practices, and PPE.
Applicable OSHA Standards and Requirements
Appendix A of the guidance identifies specific OSHA standards that may be relevant to employers reopening, including the AEEMR and PPE standards mentioned above. Those standards were summarized in our previous article regarding OSHA’s Enforcement Response Plan. Employers should review those standards to make certain nothing has been overlooked.
Please contact your Nyemaster Goode attorney for any questions regarding OSHA’s COVID-19 return to work guidance, workplace safety enforcement guidance, or for assistance with labor and employment issues in general.