A Brief Summary of OSHA's Guidance for Opening Workplaces in Light of COVID-19.

I.                    Introduction

               The U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) recently released “Guidance on Preparing Workplaces for COVID-19 (OSHA 3990-03 2020)”[1] as many cities and states have started to relax stay-at-home orders issued in response to the COVID-19 pandemic and to implement phased plans to reopen public areas and hopefully revitalizes businesses that have severely suffered. The guidance is framed under the provisions of The Occupational Safety and Health Act, but does not create any new legal obligations for employers – instead, it is meant to serve as an advisory tool to employers as they begin to plan how to safely reopen their workplaces to their employees and the public at large. Using traditional infection prevention and industrial hygiene practices as its baseline, the guidance helps employers identify the risk level in their workplace and what control measures are appropriate to implement in order to provide a safe workplace.

II.                  The Virus Itself

               SARS-CoV-2, COVID-19, or, as it is commonly referred to, the coronavirus has shut down American workplaces and the American economy in an unprecedented way. The National College Athletic Association March Madness Tournament was cancelled, restaurants were completely shut down before ultimately being able to conduct curbside pickup and delivery, and unemployment has skyrocketed with an estimated 30 million Americans filing for unemployment as of April 25.[2] More fortunate employees who have been able to keep their jobs are now adjusting to working from home, Zoom meetings, and new coworkers in the form of spouses and pets. The media landscape is overwhelmed with discussions of how the virus spreads and who is susceptible to the virus, so this section will just briefly address those concerns so as not to inundate you once again.

               The symptoms of the coronavirus include fever, cough, and shortness of breath. Other non-respiratory symptoms, a loss of one’s sense of taste, for example, have also been reported. And in other instances, people who have had the virus did not even realize they were sick because they experienced no symptoms at all. Until testing is widespread and readily available, these asymptomatic cases necessitate that businesses are cautious as they open again. A person with the virus may not be experiencing any symptoms, or their symptoms may not appear right away (symptoms have been reported to have shown up to 14 days after exposure), and therefore employers run the risk of spreading the virus in the workplace by allowing an asymptomatic employee back to work without implementing certain safeguards and policies.

               Like many other viruses, the coronavirus spreads mainly from person-to-person. The six-foot distancing requirements that many businesses have already implemented by setting up signs for customers to wait at when they check out or enter another section of a store were chosen because close contact, i.e., when people are closer than approximately 6 feet, makes the spread of the virus significantly more likely since it is spread through respiratory droplets that are expelled when someone who has the virus coughs or sneezes. While not the main method that the virus spreads, it can be spread when a person touches something that was previous touched by someone with the virus and then subsequently touches their own mouth, nose, and possibly eyes. Even people with asymptomatic cases may spread the virus, which creates a difficult situation for employers and employees re-entering the workplace. Despite the implementation of various public health measures aimed at limiting the spread of the virus, the guidance asserts that it is likely that person-to-person transmission will continue. Therefore, it is vital that businesses have their own policies and procedures in place to do their part in limiting the transmission and spread of the virus and keeping their employees and customers safe.

III.                General Steps Employers Can Take to Reduce Risk of Exposure

               While the guidance provides further detail as to what precautions a workplace should take to reduce the risk of exposure to the coronavirus according to an occupation risk pyramid (lower risk, medium risk, high risk, and very high risk), this paper is only going to set out general considerations for employers who are reopening and the types of plans and precautions that should be implemented. Depending on where an employer falls on the occupation risk pyramid, additional measures in the OSHA guidance should be implemented accordingly.

               Utilizing guidance from federal, state, and local agencies and considering where a workplace falls on the occupation risk pyramid are paramount to developing an infectious disease preparedness and response plan. This plan should identify where, how, and to what sources of coronavirus employees may be exposed, whether that is the general public, customers/clients, coworkers, or, in the case of the healthcare industry, sick individuals or those at particularly high risk of infection. Outside of the workplace atmosphere itself, employers should consider the individual risk factors that its employees face. For example, employees that are older or who have chronic medical conditions are more susceptible to experiencing worse symptoms from the virus than younger employees or those who do not have chronic medical conditions and, therefore, should be given additional consideration in an employer’s infection disease preparedness and response plan.

               Another concern is an employee’s non-occupation risk factors at home and in their community and whether they are responsible for taking care of children who are no longer at school or day care or if they are responsible for taking care of sick family members. An effective infectious disease preparedness and response plan should establish contingency plans for common situations resulting from the pandemic such as increased worker absenteeism; the need for social distancing, staggered work shifts, downsizing operations, working for home, and other new measures to reduce the risk of exposure; cross-training employees in order to continue operations in spite of employees being sick or having to work remotely; and the impact of interruptions in supply chains.

               Once an employer has established an infectious disease preparedness and response plan to proactively address and minimize the risk of exposure to and spread of the virus, the next step is to begin to implement basic infection prevention measures to provide further safeguards for employees. These safeguards include:

·        Promoting frequent and through hand washing and proper respiratory etiquette;

·        Making alcohol-based hand rubs containing at least 60% alcohol available;

·        Encouraging workers who are sick, or believe they may be sick, to stay home and, if possible, work from home;

·        Allowing employees to work from home or work adjusted hours in order to increase social distancing at the workplace;

·        Discouraging employees from using any items or workstations that another employee might use; and

·        Routinely cleaning and disinfecting the workplace using Environmental Protection Agency (EPA)-approved disinfectants that are effective against emerging viral pathogens.

               In addition to these basic prevention measures, policies and procedures for identifying sick employees should be implemented to ensure that these preventative measures are not overshadowed and weakened by the presence of sick employees in the workplace. Employers should encourage employees to self-monitor and develop procedures for employees to report when they believe they might be sick or experiencing possible symptoms of the coronavirus. Providing face masks to employees can help to contain the spread of the virus for employees that are in close contact with other employees. The purpose of these face masks is to prevent the wearer from potentially spreading the virus if they are sick and not showing symptoms yet or are asymptomatic. Ideally, all employees would utilize a mask at the office to both restrict their own ability to spread the virus and to limit their own exposure to the spread of the virus from their co-workers.

               Employees should feel comfortable and empowered to stay home and, if possible, work from home if they are sick, believe that they might be sick, or if they must take care of a sick family member and/or children who are no longer able to go into school. Employers can ensure that this is the case for their employees by crafting sick leave policies that are flexible, providing employees with sufficient education concerning the nuances of these policies, and working with insurance companies and local and state agencies to provide education to their employees regarding medical care; “[i]nformed workers who feel safe at work are less likely to be unnecessarily absent.”[3] Rather than requiring employees to obtain sick notes to validate their illness, employers should be flexible and allow employees to work from home absent these notes because many medical facilities are overwhelmed and cannot provide these notes quickly. Becoming aware of, and respecting, employees’ concerns about pay, leave, safety, and health will allow employers to gain a better understanding of what policies and procedures will be most effective in their particular circumstances.

               A “hierarchy of controls” framework allows an employer to select ways of controlling workplace hazards associated with the coronavirus by framing the controls in terms of most to least effective. While the controls are organized this way, it does not mean that the least effective controls are not still important to utilize; rather, the least effective controls represent the minimum protection that an employer should consider and, depending where the employer falls on the occupation risk pyramid, may be sufficient on their own to protect an employer’s employees and customers or clients. However, some combination of measures is almost always necessary. From most to least effective, the general protection measures are categorized as engineering controls, administrative controls, safe work practices, and personal protective equipment (PPE).

               Engineering controls allow an employer to reduce exposure to hazards without relying on the behavior of its employees by setting up policies, procedures, and safeguards in such a way as to isolate employees from the hazards in the first place. Engineering controls in response to the coronavirus may include all, or some combination of, the following measures:

·        Installing high-efficiency air filters, physical barriers (e.g., plastic sneeze guards), and/or drive-through windows for customer service;

·        Increasing ventilation efficiency in the workplace; and/or

·        Implementing specialized negative pressure ventilation.

               Administrative controls, unlike engineering controls, require action by employees to reduce risk. These controls typically involving changing policies and procedures to limit, or completely remove, the risk that employees and customers might be exposed to some hazard. An employer might encourage sick workers to stay at home and provide detailed education regarding its paid sick leave policy and coronavirus risk factors and protective behaviors. Contact between employees, clients, and customers can be minimized by replacing face-to-face meetings with virtual communications – through the use of platforms such as Microsoft Teams and Zoom – and, when feasible, encouraging employees to work from home. For employers where working from home is not possible or creates severe workflow inefficiencies, alternating workdays/weeks or shifts can be created so that fewer employees are in an office at one time, thus reducing the level of contact between employees and allowing proper social distancing practices to occur. Any nonessential travel to locations with ongoing coronavirus outbreaks should be discontinued to avoid the risk of an employee becoming infected and bringing the virus back into the workplace. Finally, workers that need to use protective clothing and equipment to perform necessary tasks should have detailed training on how to properly wear and use such items so as to maximize their effectiveness.

               Safe work practices are a subset of administrative controls that seek to reduce the duration, frequency, or intensity of exposure to a hazard by setting up procedures governing how employees can safely work. These practices are typically inexpensive to implement and involve providing resources at the workplace to promote personal hygiene; e.g., signs in restrooms explaining how to properly wash one’s hands and providing for alcohol-based rubs and disinfectants through the workplace.

               Personal protective equipment, or PPE, is probably the control that people are most familiar with as workplaces and citizens alike have been encouraged to wear masks to help limit the spread of the virus. Gloves, goggles, face shields, face masks, and respiratory protection are the most common examples of PPE that may be utilized in the workplace. PPE may be needed to prevent certain exposure when employees are unable to limit their contact with other people, such as in a healthcare setting. Using PPE, however, should never take the place of other prevention controls and strategies and should always be utilized as an additional protective measure. Employers are obligated to provide their employees with the PPE necessary to keep them safe while performing their jobs and should select the PPE based upon the hazard to the worker, ensure that the PPE is properly fitted, ensure that the PPE is consistently and properly worn, and ensure that the PPE is properly cleaned and stored as necessary.

IV.               Conclusion

               There is little doubt that the coronavirus pandemic will create, at least for the time being, a “new-normal” for workplaces across the country (and across the world). This summary of OSHA’s “Guidance on Preparing Workplaces for COVID-19” presents numerous opportunities for employers to reopen in ways that are designed to keep their employees safe and hopefully prevent a resurgence of the virus and second large-scale shutdown of businesses. Employers would be wise to carefully consider these guidelines and assess where they can make improvements to their policies and procedures in response to the pandemic.

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Additional Resources:

·        U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention (CDC) – www.cdc.gov/coronavirus/2019-ncov.

·        OSHA COVID-19 Webpage – www.osha.gov/covid-19, www.osha.gov/SLTC/covid-19/standards.html.

·        State Plans – www.osha.gov/stateplans.

·        Prevention Measures – www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html.

·        CDC Travel Warning Levels – www.cdc.gov/coronavirus/2019-ncov/travelers.

SOURCES:

[1] Please see https://www.osha.gov/Publications/OSHA3990.pdf for the entire text of the guidance.

[2] https://www.cnn.com/2020/04/30/economy/unemployment-benefits-coronavirus/index.html.

[3] https://www.osha.gov/Publications/OSHA3990.pdf.