May 8, 2020
Authored by: Patrick DePoy, Bryan Keyt and Dave Brankin
As state and local governments begin to ease restrictions on businesses and increasingly look to “reopen” economic activity, employers are evaluating how to safely return employees to the workplace. This preparation must include not only understanding the parameters of state and local orders (which often include basic social distancing measures, such as staying 6 feet apart, or requiring employees to wear face coverings), but also considering obligations under standards set by the federal Occupational Safety and Health Administration (“OSHA”).
Below is a guide for employers to consider as they evaluate safe return-to-work strategies during the ongoing COVID-19 pandemic. Please consult BCLP’s additional guidance for a broader discussion of other considerations when developing a “reopening plan.”
Step 1: Review state and local orders to determine whether a business or workplace is permitted to reopen.
As an initial step, an employer must determine whether, when and to what extent it can open and maintain in-person operations. State and local orders vary in their definitions of “essential businesses” permitted to operate. For example, Georgia’s recent “reopening” orders only grant a small subset of businesses permission to reopen. BCLP is tracking the current status of state and local shelter-in-place orders nationwide, which are changing regularly.
Step 2: Review OSHA’s COVID-19 Guidance to understand and implement broadly applicable recommendations for reducing employees’ risk of exposure to COVID-19.
An employer should next carefully consider what steps it must take to comply with the federal Occupational Safety and Health Act (the “Act”). OSHA has issued COVID-19 specific guidance articulating the agency’s temporary, modified enforcement approach as related to certain OSHA standards to assist employers in providing a safe workplace and complying with the law.
OSHA recommends that all employees take the following actions to reduce employees’ risk of exposure to COVID-19:
- Developing or Updating an Infectious Disease Plan: Such plans should, among other things, consider employees’ potential exposure risks, prepare for increased rates of absenteeism, and develop plans for staggered work shifts and other exposure-reducing measures.
- Implementing Basic Infection Prevention Measures: Promote handwashing and use of hand sanitizer (at least 60% alcohol), practice social distancing (i.e., staying 6 feet away from co-workers and members of the public, if possible), encourage sick workers to stay home, and maintain routine cleaning and disinfecting practices.
- Developing Policies for Isolating Sick People: Employees must be informed how to appropriately report symptoms of COVID-19, and human resources personnel should be prepare to isolate and remove sick employees from the workplace.
Step 3: Identify the risk level of the workforce and consider implementing appropriate engineering and administrative controls based on that risk level.
Employers should next conduct an assessment to evaluate the workplace exposure risk that employees will face upon returning to work in order to identify the administrative and engineering controls needed to keep employees safe. To assist employers, OSHA developed an “occupational risk pyramid” with four categories of general risk of exposure to COVID-19: Very High, High, Medium, and Lower. The actions an employer should consider taking depend on which “risk” category applies to the employer’s workforce.
The “Very High” and “High” risk employees are healthcare workers, medical transports employees (e.g., ambulance drivers or other emergency medical technicians), and morgue and mortuary workers. As such, most employees will fall into the Lower or Medium risk category. For this reason, this post will focus on employees in the Medium and Lower risk categories.
Medium risk jobs include those that require frequent and/or close contact with (i.e., within 6 feet of) people who may be infected with COVID-19, but who are not known or suspected COVID-19 patients. For example, this may include workers who have frequent contact with travelers who may return from international locations, or workers who may have contact with the general public (e.g., schools, high-population-density work environments, some high-volume retail settings, etc.).
Lower risk jobs are those that do not require contact with people known to be infected with COVID-19, and do not require frequent contact with the general public. These workers have minimal occupational contact with the public and other coworkers. For example, many office jobs would likely be considered in the Lower exposure risk category as long as employees’ desks and workstations are spaced at least six feet apart, and employees have minimal physical contact with their colleagues.
OSHA recommends that employers implement engineering and administrative controls appropriate for the COVID-19 exposure risk at a particular workplace. Engineering controls reduce exposure to hazards without relying on worker behavior, while administrative controls rely on worker behavior to reduce exposure to hazards.
OSHA recommends that Medium risk employers consider the following engineering controls: installing physical barriers, such as clear plastic sneeze guards, between workers and members of the general public; developing strategies to minimize face-to-face contact (e.g., more deliveries instead of in-person purchases, teleworking, etc.); using high efficiency air filters; and increasing ventilation rates in the work environment. Administrative controls recommended for Medium risk employers include steps like encouraging workers to stay home when sick, implementing social distancing guidelines for employees at work, and other changes in workplace policies.
For Lower risk workforces, OSHA recommends taking relatively simple steps, such as collaborating with employees to effectively communicate important COVID-19 information. OSHA states that “[a]dditional PPE is not recommended for workers in the lower risk group,” but that employees should continue to use the PPE they would for their normal job duties.
Step 4: For workplaces with a medium (or higher) risk of exposure, assess the need for PPE.
According to OSHA’s Guidance, employees in a workplace classified as posing a Medium risk may need to wear some combination of gloves, a gown, a face mask, and/or a face shield or goggles and, depending on what protection is selected, an employer may be required to implement a PPE Program. When equipment qualifies as PPE, OSHA regulations require an employer to implement training and other measures before employees can be required to wear PPE. Employers that require their employees to wear PPE must draft a “PPE Program” that addresses, at a minimum, the hazards present in the workplace; the selection, maintenance, and use of PPE; the training of employees on the proper use, maintenance and disposal of PPE; and monitoring of the program to ensure its ongoing effectiveness. Appendix B to OSHA’s PPE regulations for “general industry” provides a helpful guide for implementing requirements for a hazard assessment and the selection of PPE.
Employers with an existing PPE Program should review and revise the PPE Program and any related hazard assessment to consider and incorporate known exposure risks for COVID-19, and identify and document steps taken to address those risks. A PPE Program should document the selection of additional PPE, if any, to address COVID-19 risks. An employer should also document training provided to employees regarding the sources of exposure to the virus, the hazards associated with that exposure, and appropriate workplace protocols in place to prevent or reduce the likelihood of exposure.
For employers that have not previously drafted a PPE Program, it can be a complicated exercise. Among other things, a PPE Program must address training for employees on how to properly don (put on), use, and doff (take off) PPE, and how to properly dispose of or disinfect PPE. For example, if employees are wearing disposable gloves, the Program must address what kind of gloves to wear, and how and when to change them. Drafting a PPE Program requires careful consideration of an employer’s workforce and individual exposure risks.
Respiratory Protection Program
Medium (and Lower) risk employers under OSHA’s guidance are probably not required to provide their employees with respirators (i.e., N95 “masks”). Whether risks associated with COVID-19 require employers to furnish respirators will be a highly workplace-specific determination. Moreover, any employer that requires the use of a respirator, even if there is no hazardous atmosphere that would require respirators under OSHA regulations, must draft and develop a Respiratory Protection Program that meets OSHA’s regulatory standards (e.g., fit test, medical evaluation, and cleaning protocols). Any employer uncertain whether it must provide respirators, or considering requiring the use of respirators out of an abundance of caution, should consult with their legal counsel.
At the same time, employers may decide to permit employees to wear “filtering face pieces,” the technical term for N95 and similar masks, as personal face coverings on a voluntary basis. For voluntary use, employers need not develop a complete Respiratory Protection Program. However, employers permitting voluntary use must implement certain elements of such a Program. For example, voluntary use does not require the respirator wearer to be fit tested, but does require an employer to ensure that the respirator’s use does not create a health hazard for the employee wearing it. Additionally, employers must provide employees voluntarily wearing respirators with the information contained in Appendix D to the respirator regulations, and must ensure that the respirator is cleaned, stored, and maintained so that its use does not present a health hazard to the user. Note that this exception only applies to respirators like an N95. If an employer permits the use of more sophisticated respirators, like an elastomeric face piece or a powered air-purifying respirator, the employer must pay for medical evaluations for voluntary users and provide voluntary users with appropriate facilities and time to clean, disinfect, maintain, and store respirators.
Employers should carefully consider the risks faced by their employees when determining whether respirators are necessary. In light of the current relative scarcity of N95 and similar respirators, OSHA has issued enforcement guidance providing some flexibility for employers unable to obtain respirators. Additionally, OSHA advised that complaints filed by employees in Medium and Lower risk workplaces will generally not result in onsite inspections. Nonetheless, employers should complete these steps to ensure compliance with OSHA.
The COVID-19 pandemic and its impact on the workplace is rapidly evolving. As more state and local authorities consider easing their shelter in place orders, and “reopening their economies,” new orders regarding masks and face coverings for employees may be issued. In a separate blog post, BCLP reviews specific state and local orders with respect to face coverings and “masks.” Employers should regularly consult with legal counsel, the CDC’s website, OSHA’s website, and state and local health departments to ensure they have the most up-to-date information and guidance.
BCLP has assembled a COVID-19 HR and Labor & Employment taskforce to assist clients with labor and employment issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html