OSHA and Managing The Workforce
The business community has never seen anything like COVID-19. It is unprecedented in scale, scope, and impact. Choate’s Labor, Employment, and Benefits team outlines current guidance related to common issues on coronavirus and its effect on the workplace.
What Steps Should Employers Take To Protect Employees?
OSHA has issued general guidance as well as industry-specific guidance around steps employers should take to ensure employee safety. The OSHA guidelines begin by specifying often low-cost steps that all employers can take to increase the safety of the workplace during the COVID-19 state of emergency. These measures include: promoting social distancing (6 feet or more between each employee), promoting frequent handwashing and providing alcohol-based hand rubs containing at least 60% alcohol, encouraging workers who are sick to stay home, encouraging respiratory etiquette (covering coughs and sneezes), discouraging workers from using others’ workspaces, tools, and supplies, and routinely cleaning and disinfecting surfaces. The guidance lists ways in which employers can more effectively promote social distancing such as telecommuting for employees who are able and staggering work schedules for other employees. In addition, the guidance instructs employers to develop policies and procedures for identifying and isolating sick people who have accessed the workplace.
Beyond these steps that all employers can take, the OSHA guidelines provide additional specific guidance based on the risk category of each workplace: very high risk workplaces such as hospitals who deal directly with COVID-19 patients, high risk workplaces whose employees may be exposed to the virus such as ambulance workers, medium risk workplaces where workers have frequent close contact with the public such as schools and high-volume retail settings and low risk workplaces where there is minimal contact with others and an ability to maintain distance from other employees such as most commercial office spaces. While the guidelines do not recommend engineering controls or PPE (discussed in more detail below) for low-risk workplaces, OSHA has come under some scrutiny for failing to enhance these guidelines. Therefore, it is worthwhile for employers to consider the different potential measures that might best protect their workplaces.
The guidance organizes these measures as a hierarchy of controls, which it lists in terms of effectiveness from most effective to least effective: engineering controls, administrative controls, safe workplace practices (a type of administrative control, and PPE. OSHA recommends engineering controls as an effective measure because these controls do not rely on employee behavior. Recommended potential engineering controls include installing high-efficiency air filters, increasing ventilation rates, installing physical barriers, such as clear plastic guards, and installing a drive-through window for customer service.
The guidance likewise provides examples of potential administrative controls including minimizing face-to-face meetings among workers, encouraging sick workers to stay home, banning non-essential work travel, providing training on disease control, establishing alternating days or shifts, and training workers on any PPE that will be used in the workplace. OSHA also encourages safe workplace practices, which may include providing supplies such as tissues, no-touch trash cans, hand soap, alcohol-based hand rubs, disinfectants, and disposal towels; posting handwashing signs; and requiring regular use of hand sanitizer.
Finally, the guidelines discuss PPE, which OSHA considers less effective than good engineering and administrative controls. PPE may include: gloves, goggles, face shields, face masks, and respiratory protection, when appropriate. OSHA advses that PPE should be selected based upon the potential hazard to the worker and must be properly fitted, consistently and properly worn, regularly inspected, maintained, and replaced, and properly removed, cleaned, and stored. Employers should be aware that state and local rules encouraging or mandating the use of certain PPE must be considered alongside this OSHA guidance.
A link to the OSHA guidelines can be found here:
OSHA has also published industry-specific guidance for the package delivery industry, the manufacturing industry, the construction industry, meat and poultry plants, and restaurants and other food vendors. OSHA has published these documents (available at https://www.osha.gov/coronavirus) and will likely continue to do so for other industries as more sectors of the economy reopen.
What Should An Employer Do If An Existing Employee Contracts COVID-19?
If an employee is confirmed to have COVID-19, employers should ensure that the infected employee remains out of work and should ask that employee for a list of any coworkers who had been within six feet of the infected employee up to 48 hours before the onset of symptoms. Employers should consider having those employees work remotely or otherwise self-quarantine for fourteen days. In informing fellow employees of their possible exposure to COVID-19 in the workplace, the employer shouldmaintain as confidential the identity and specifics of the affected employee. Employers should ensure that supervisors and managers are trained on maintaining this confidentiality. Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment (https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html) of their potential exposure.
Both OSHA and the CDC recommend increased cleaning, particularly in the employee’s workspace and any other areas in which the employee has been, but they do not necessarily contemplate a closure over one employee having a confirmed case of COVID-19. That said, it is advisable to close that area for long enough to do a deep clean. In the manufacturing context, this might mean shutting down a particular line for at least a shift to clean/disinfect thoroughly.
An employee who has tested positive for COVID-19 can return to the workplace when the employee no longer has a fever (without the use of fever reducing medicine), respiratory symptoms have improved, and the employee received 2 negative tests in a row, at least 24 hours apart (or otherwise was cleared by a medical professional based on CDC recommendations). If an employee had symptoms of COVID-19 but did not have a confirmed positive test, the employee can return when the employee had no fever for at least 72 hours without the use of fever-reducing medicine, the employee’s respiratory symptoms have improved, and at least 7 days haved passed since the onset of symptoms.
What Measures Can An Employer Take To Ensure The Workplace is Safe?
Employers can tell employees who are exhibiting flu-like symptoms such as fever, body aches, coughing or respiratory problems to remain at home in accordance with the guidance in Section III.B above. Similarly, employers can tell employees who has come into contact with (for example, is living with) someone exhibiting such symptoms to remain at home for a fourteen-day period.
Some employers have asked about whether they can mandate that employees take their temperatures at work. Employers can take employee temperatures or can purchase thermometers for employees and require that employees self-report their temperatures. Temperature logs, like all medical records, must be kept in secure files separate from personnel files.
Employers can and should take reasonable steps to guard against the COVID-19 virus from spreading. Such steps include requiring employees to regularly wash their hands and use disinfectant wipes on work surfaces. Employers should also embrace social distancing procedures such as urging all employees to maintain acceptable distance (6 feet) from one-another in the workplace. Employers may consider the use of PPE, such as facemasks, and should consult state and local guidance on this topic.
Do Employers Need To Record Incidents of Coronavirus or Report A Death or Hospitalization Triggered By Coronavirus?
Some employers such as banks, schools and universities are exempted from OSHA’s mandate to record all injuries in the workplace. Assuming an employer is not exempt, COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:
1. The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
2. The case is work-related, as defined by 29 CFR 1904.5; and
3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).
All employers are required to report the death or hospitalization of employees as a result of COVID-19 infection contracted from performing work-related services. Any death must be reported within eight hours and any hospitalization within twenty-four hours.
If you have questions regarding these developments, please contact a member of the Labor, Employment & Benefits team.
For more guidance on issues related to the coronavirus pandemic, please visit our COVID-19 Resource Center.