Returning to work: OSHA issues guidance

As state and local authorities across the country continue to loosen stay-at-home restrictions regarding coronavirus disease 2019 (COVID-19) and allow additional businesses to restart on-site operations, employers have an increasingly urgent need for clarity regarding health and safety requirements for reopened job sites. In this alert, we discuss new Occupational Safety and Health Administration (OSHA) guidance which details steps for employers concerning employee safety.

OSHA’s updated guidance supplements its previous Guidance on Preparing Workplaces for COVID-19, which describes basic steps that employers can take to reduce the likelihood of worker exposure to the virus based on where workers fall on the continuum of exposure risk. For an overview of this previous guidance, please refer to our April 2, 2020 Employment Alert, Beyond social distancing: What employers need to know to keep their workplaces safe and manage privacy obligations in the face of COVID-19. OSHA’s guidance reaffirms that reopening should align with the lifting of stay-at-home or shelter-in-place orders and other specific requirements of federal, state, and local governments, as well as with public health recommendations from the Centers for Disease Control and Prevention (CDC) and other federal requirements or guidelines.

Phased reopening

OSHA recommends a three-phase approach to reopening modeled after the White House Guidelines for Opening Up America Again. The White House guidelines set community health benchmarks called “Gating Criteria” (i.e., downward trajectory of COVID-like symptoms and cases within a 14-day period, sufficient hospital and testing capacity) that each US region or state must meet to progress through each phase.

Phase One. To move to Phase One, OSHA recommends that employers take the following steps after their state or region satisfies the Gating Criteria:

• Continue offering telework when feasible.
• Limit non-essential travel.
• When on-site work reopens, limit the number of people at the facility to allow for proper social distancing practices.
• Job accommodations should be considered for workers in high-risk groups, including elderly individuals and those with serious underlying health conditions.
• Notably, OSHA also recommends extending special accommodations to workers with household members at higher risk of severe illness.

Phase Two. After a region or state meets the Gating Criteria a second time, employers can move to Phase Two. OSHA recommends employers in Phase Two take the following actions:

• Continue to make telework available when possible.
  
• Non-essential business travel can resume.
• Limitations on the number of people in the workplace can be eased, but continue to maintain moderate to strict social distancing practices, depending on the type of business.
• Continue to accommodate vulnerable workers as identified above in Phase One.

Phase Three. In regions or states that have no evidence of a COVID-19 rebound and satisfy the Gating Criteria a third time, employers can move to Phase Three. Pursuant to OSHA’s guidance, businesses can resume unrestricted staffing of job sites in Phase Three.

Health and safety strategies for all phases

As with its previous guidance, OSHA again directs employers to implement strategies for basic hygiene (e.g., hand hygiene, cleaning and disinfection), social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee health and safety training during all phases of reopening.

“Guiding Principles” for reopening

In its updated guidance, OSHA identifies a non-exhaustive list of “Guiding Principles” that employers’ reopening plans should address. These principles track – with some notable additions – previous OSHA guidance on steps employers can take to reduce the risk of worker exposure to the virus. Please see our April 2, 2020 alert for a summary of these steps. OSHA’s most recent guidance includes additional principles for employers:

• Return to work after illness or exposure: Follow CDC guidance for discontinuing self-isolation and returning to work after illness or discontinuing self-quarantine and monitoring after exposure. Workers who have been exposed to someone with COVID-19 should routinely monitor themselves or receive monitoring in accordance with CDC guidance.
  
• Anti-retaliation: Implement practices for ensuring that no retaliatory action is taken against an employee who adheres to OSHA guidelines or raises workplace safety and health concerns.

New FAQ guidance

OSHA’s latest guidance includes FAQ responses which clarify its position on a number of important COVID-19 issues:

• Is there guidance on health screening recordkeeping requirements?

Whether employers should retain COVID-19 employee health screening data – and if so for how long – is a commonly asked question. According to OSHA, employers need not make a record of temperatures when screening employees, but instead may acknowledge a temperature reading in real-time. However, where an employer implements health screening or temperature checks and chooses to create records, those records might qualify as medical records under OSHA’s Access to Employee Exposure and Medical Records standard. Importantly, OSHA provides that temperature records do not qualify as medical records under the standard unless they are made or maintained by health care personnel or technicians. Notably, where an employer creates a qualifying employee screening record, the guidance provides that the employer must retain it for the duration of the employee’s employment plus 30 years and follow confidentiality requirements.

Because recordkeeping requirements may vary by state, we encourage employers to consult with counsel for further guidance on this complex issue.

• Can employers conduct job site COVID-19 testing?

Yes. According to OSHA, neither the OSH Act nor OSHA standards prohibit employer testing for COVID-19. However, such testing must be conducted in a non-retaliatory manner. OSHA cautions employers against relying on negative test results and advises that employers should not presume that individuals who test negative present no hazard to others in the workplace.

In separate guidance, the US Equal Employment Opportunity Commission (EEOC) has also stated that COVID-19 viral tests are permissible under the ADA. This should be distinguished from antibody tests which, based on EEOC guidance issued on June 17, 2020, do not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for employees. According to the EEOC, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

• Can employers conduct job site temperature checks or other health screening?

Yes. According to OSHA, neither the Act nor its standards prohibit employers from conducting health checks provided that such checks are conducted in a non-retaliatory manner and meet ADA confidentiality requirements.

Notably, such daily health checks can be performed in-person or virtually – but note that some jurisdictions require in-person testing before individuals can enter the workplace. OSHA’s guidance further acknowledges that, in many workplaces, temperature screening efforts are likely to be most beneficial when conducted at home by individual workers rather than employers directly measuring temperatures after workers arrive at the work site.

• What other OSHA requirements must an employer follow when conducting COVID‑19 health screening, temperature checks, or testing?

For employers that conduct in-person health screening or tests, OSHA directs employers to protect personnel conducting such screenings by implementing appropriate engineering and administrative controls, safe work practices, and providing and using personal protective equipment (PPE).

• Is there any guidance on the overlap between the various health screening and medical issues associated with COVID‑19 and other labor, disability, and employment laws?

The EEOC has established guidance regarding What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Employers are encouraged to review this guidance as they develop the health screening, workplace policies, return to work plans, and consider other issues that may arise as they reopen their workplaces.

• How can an employer determine if its employees need PPE?

According to OSHA, employers must conduct a hazard assessment in accordance with the agency’s PPE standard, if applicable, to determine the PPE requirements for their unique job site. Employers subject to this standard are to determine if PPE is necessary for employees to work safely after considering whether job site controls and safe work practices can effectively mitigate identified hazards. If PPE is needed but not available and employers cannot identify alternative means to accomplish business needs safely, OSHA indicates that the work tasks must be discontinued until they can be done safely.

DLA Piper continues to monitor COVID-19 guidance in this rapidly changing area. Please contact any member of the DLA Piper Employment group, or your DLA Piper relationship attorney for the most current information or email us at CoronavirusEmployment@dlapiper.com.

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This information does not, and is not intended to, constitute legal advice.  All information, content, and materials are for general informational purposes only.  No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.