Key Takeaways

• OSHA issued new guidance for employers clarifying previous guidelines for reopening businesses and returning employees to the workplace

• The guidelines address hygiene, social distancing, controls and PPE, isolation of sick employees, and returning recovered employees to work

• The guidelines also address a range of issues critical to Human Resources and management, including workplace flexibility, training, and anti-retaliation considerations

The Occupational Safety and Health Administration (OSHA) recently issued new guidance for employers that clarifies previous guidelines for reopening businesses and returning employees to the workplace. Employers should take the time to carefully review this guidance (which is currently available on OSHA’s website) as well as any applicable state or local government guidance.

Goldberg Segalla’s Employment and Labor team has analyzed the OSHA guidance and offers the following quick summary, which we recommend for review prior to reading the entire guidance.

OSHA Recommendations for Reopening Plans

OSHA recommends that employers’ reopening plans address the following:

• Hazard Assessment—Employers should assess all job tasks performed by employees to determine which job tasks or job categories involve occupational exposure. Employers should consider exposure from members of the public as well as exposure from close contact with coworkers in the workplace.
• Hygiene—Employers should provide soap, water, and paper towels for workers, customers, and visitors to wash their hands and encourage frequent and proper handwashing. Employers should identify high-traffic areas and frequently touched surfaces and target them for enhanced cleaning and disinfection.
• Social Distancing—Employers should limit business occupancy to a number of workers/customer that can safely be accommodated to allow for social distancing (six feet of distance is recommended). Employers should consider demarcating flooring in six-foot zones in key work areas; posting signage to remind workers, customers, and visitors to maintain social distance; and posting directional signage for narrow hallways/corridors where maintaining social distance may not be possible.
• Identification and Isolation of Sick Employees—Employers should ask employees to monitor themselves for signs/symptoms of COVID-19 before coming to work and to stay home if they are not well. Establishing a protocol and response plan for employees who become ill in the workplace should include details about how and where the sick person will be isolated while awaiting transportation from the workplace to their home or a health care facility.
• Return to Work After Illness or Exposure—Employers should refer to Centers for Disease Control and Prevention (CDC) guidance for discontinuing self-isolation and returning to work after illness, or discontinuing self-quarantine and monitoring after exposure, as is appropriate for the workplace.
• Controls—Employers should implement engineering controls (g., physical barriers/shields to separate workers, enhanced ventilation) and administrative controls (e.g., staggering work shifts, limiting breakroom capacity, replacing in-person meetings with video-conference calls, ensuring workers wear appropriate face coverings) and providing and ensuring workers use appropriate personal protective equipment (PPE) if required by OSHA and CDC guidance. (Note: Cloth face coverings are not considered to be PPE.)
• Workplace flexibilities—Employers should continue to reevaluate existing policies to facilitate appropriate use of telework, sick or other types of leave, and other options to minimize workers’ exposure risks. Employers should communicate these policies to workers so they understand how to make use of the available options.
• Training—Employers should train workers in the appropriate language and literacy level about their risks of exposure to SARS-CoV-2, what the employer is doing to protect them, and how they can protect themselves. As to PPE, if required and consistent with OSHA and CDC guidance, workers should be trained in how to put on, use, and take off PPE; how to clean, maintain, store, and dispose of PPE; and the limitations of PPE.
• Anti-retaliation—Employers should prevent adverse or retaliatory action against any employee who adheres to OSHA’s guidelines or raises workplace safety and health concerns. Supervisors should be familiar with workplace flexibilities and other human resources policies and procedures.

Guidance on Employee Screening

In this new guidance, OSHA also confirmed that employers may perform daily temperature checks and health assessment of employees, so long as those checks and assessments are administered transparently and fairly, and anyone performing the checks are protected. Any such screening should consider ways to maintain confidentiality as required by the Americans with Disabilities Act. Employers should keep in mind that if they choose to record the results of health screening or temperature checks, those records might qualify as medical records and may be subject to specific recordkeeping and confidentiality requirements under the Access to Employee Exposure and Medical Records standard.

Read OSHA’s latest guidance:

• “Guidance on Returning to Work,” U.S. Department of Labor Occupational Safety and Health Administration, OSHA 4045-06 2020

It is important that employers understand how this new guidance interacts with previously released guidance from federal, state, and local government health authorities. If you need assistance, contact:

• Erica B. Row
• Caroline J. Berdzik
• Peter J. Woo
• Kristin Klein Wheaton
• Or any member of our Employment and Labor Coronavirus Rapid Response Team