On June 18, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued new COVID-19 related guidance to assist businesses deemed “non-essential” as they reopen their workplaces. The document, Guidance on Returning to Work, lays out a three-phase reopening plan, which—consistent with guidance from state governments and health agencies, as well as the Centers for Disease Control and Prevention (CDC)—focuses on the need for employers to develop and implement strategies for basic hygiene, social distancing, identification and isolation of sick employees, workplace controls, flexible work arrangements, and employee training. 

Employers are also encouraged to continually monitor federal, state, and local government guidelines for updated information about ongoing community transmission and mitigation measures, as well as for evolving guidance on disinfection and other best practices for worker protection. It is also advisable that as an initial step, employers perform a hazard assessment (just like it would do for other safety compliance issues), identifying potential sources of exposure (e.g. co-workers, customers) and the job tasks which could lead to exposure, in order to fashion a plan to mitigate recognized hazards consistent with OSHA’s General Duty Clause.

OSHA advises that the three-phase reopening process should align with the lifting of stay-at-home orders and other specific federal, state, and local requirements. Businesses identified as “non-essential” in the context of the pandemic should generally follow these guidelines:

• Phase 1: Make telework available where feasible. Limit the number of people in the workplace in order to maintain strict social distancing practices. Limit non-essential business travel. Where feasible, accommodate workers at higher risk of severe illness, including workers over age 65 and those with serious underlying health conditions. Additionally, consider extending special accommodations to workers with household members at higher risk of severe illness. 
• Phase 2: Continue to make telework available where possible. Non-essential business travel can resume. Limitations on the number of people in the workplace can be eased, but moderate to strict social distancing practices should continue. And continue to accommodate vulnerable workers as identified above in Phase 1.
• Phase 3: Resume unrestricted staffing of work sites.

Although OSHA recommends providing accommodations to older workers and those with vulnerable family members during Phase 1 and 2, such measures are not legally mandated. Recently updated Equal Employment Opportunity Commission (EEOC) guidance clarifies that employers are not required to provide accommodations for older workers merely due to their age, and further, that they cannot unilaterally exclude older workers from the workplace based on their age. Likewise, the Americans with Disabilities Act (ADA) does not require an employer to provide accommodations based on a disability of an employee’s family member. However, for employee relations reasons, we generally recommend that employers consider making such accommodations where feasible. See prior WilmerHale alert on EEOC guidance here.  

OSHA recommends that during all stages of reopening, employers develop and implement a reopening plan that addresses preventing, monitoring for, and responding to any emergence or resurgence of COVID-19 in the workplace or community. Those scenarios could lead to increases in numbers of infected and sick employees, a need for contact tracing of individuals who visited a workplace, enhanced cleaning and disinfection practices, or even a temporary closure of the business.

An employer’s reopening plan should address nine guiding principles:

• Hazard assessment: Determine when, where, and how workers might be exposed to the virus in the course of their job duties (the guidance provides specific examples of how to approach this analysis).
• Hygiene: Encourage frequent and proper handwashing, provide workers hand sanitizer when they cannot readily wash their hands, and identify high-traffic areas for enhanced cleaning and disinfecting. 
• Social distancing: Limit business occupancy, demarcate flooring in six-feet zones, and post signage reminding workers to keep at least six feet between one another.
• Identification and isolation of sick employees: Ask employees to self-evaluate for COVID-19 symptoms before coming to work and establish a protocol for managing people who become ill in the workplace. 
• Return to work after illness or exposure: Follow CDC guidelines for discontinuing self-isolation and returning to work after illness or exposure and ensure that workers who have been exposed to COVID-19 are monitored for symptoms.
• Controls: Implement engineering controls (e.g., physical barriers/shields, enhanced ventilation) and administrative controls (e.g., staggering work shifts, replacing in-person meetings with video-conference calls, ensuring workers wear face coverings), and provide workers with appropriate personal protective equipment (PPE).
• Workplace flexibilities: Consider revising policies regarding telework and sick leave to minimize workers’ exposure risk and communicate these options to staff. 
• Training: Provide worker training covering the employer’s COVID-19 response measures, cloth face coverings, and the proper use and maintenance of PPE. 
• Anti-retaliation: Ensure workers understand their rights to a safe work environment, know whom to contact with concerns about workplace safety, and that they may report coronavirus-related safety concerns without fear of retaliation.

An employer acting consistently with these guiding principles will be best positioned to make a showing that it has fulfilled its obligation to provide a workplace free from recognized hazards likely to cause death or serious physical harm, as required by OSHA’s General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970.

The OSHA guidance also includes a question and answer section, focusing on work site health screening. OSHA confirms that employers may conduct on-site SARS-CoV-2 testing, but it cautions that employers should not presume that individuals who test negative for the virus present no hazard to others. Similarly, employers may conduct daily in-person temperature checks or have employees complete self-evaluations before reporting to work. Because asymptomatic individuals can spread the virus, temperature screening may play a part in a comprehensive workplace safety plan but may have limited utility on its own.

Notably, the OSHA guidance clarifies an employer’s recordkeeping responsibilities concerning records of employee health screenings and questionnaires (including documents that state an employee’s body temperature). The guidance distinguishes between screenings conducted by a health care provider and screenings that are either self-conducted by an employee or other member of the workforce. If health screening is conducted by a health care professional, the employer is required to retain any resulting records for the duration of each worker’s employment plus an additional 30 years. However, for example, an employer that has employees complete and submit a daily questionnaire would only be subject to the ADA’s requirement that confidential medical information be retained for 1 year. Furthermore, an employer that performs on-site temperature screening without recording results is not subject to record keeping requirements. 

In addition to the aforementioned guidance on reopening, earlier this month OSHA also released updated guidance regarding face coverings, surgical masks, and respirators in the workplace, addressing the differences and appropriate use of each apparatus as well as other related considerations for employers. Importantly, the face covering guidance confirms that cloth face coverings are not PPE and therefore not subject to OSHA's PPE Standard, 29 C.F.R. § 1910.132, meaning employers are not required to provide cloth masks to employees.  However, OSHA recommends that employers encourage workers to wear face coverings at work, and notes that use of cloth masks (if appropriate for the work environment and tasks) conserves other types of masks for healthcare settings, consistent with the CDC’s recommendation that cloth face coverings should be worn in public settings or other areas where other social distancing measures are difficult to maintain. Accordingly, employers may opt to provide cloth masks to employees without concern of triggering additional requirements associated with the PPE Standard (e.g., employee training).

The WilmerHale Employment and Environmental teams are monitoring these developments and are available to provide employers with specific advice as they reopen their businesses and resume on-site operations.