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November 2, 2021

Please join Nelson Mullins Riley & Scarborough for the 2021 South Florida Health Forum taking place on November 2 in Fort Lauderdale, FL. We look forward to reconnecting with you after a year away from our annual event!

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OnePoint Alert

June 23, 2020

OSHA Issues Three-Phase Guidance On Return To Work for Non-Essential Businesses

By Bernard F. Hawkins, Jr., Wendy Wilkie Parker, Mitch Boyarsky

The U.S. Department of Labor's Occupational Safety and Health Administration (“OSHA”) issued new recommendations, called Guidance on Returning to Work, on how non-essential businesses should develop and implement plans to address the risk of spreading COVID-19 as these businesses have employees come back to work. This document is designed to supplement the previously issued Guidance on Preparing Workplaces for COVID-19, and the White House’s Guidelines for Opening up America Again. According to OSHA’s Guidance, any reopening approach should also be consistent with “stay-at-home or shelter-in-place orders and other specific requirements of the Federal Government and state, local, tribal, and/or territorial (SLTT) governments across the United States, as well as with public health recommendations from the Centers for Disease Control and Prevention (CDC) and other federal requirements or guidelines.”

OSHA reminds employers that the strategy outlined in the new Guidance continues to emphasize “the need for employers to develop and 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 training” throughout all phases of reopening. Moreover, the Guidance reflects “the application of traditional infection prevention and industrial hygiene practices to a phased approach for reopening, as the White House guidelines describe.”  This new OSHA Guidance builds upon practices that it previously recommended.  

The new OSHA Guidance generally calls for a three-phase reopening strategy. While the Guidance describes the general strategy of restrictions for each phase, it does not  specify criteria for the advancement from one phase of the plan to the next.  Instead, the general OSHA Guidance on this point seems to be that: “employers should monitor SLTT health department communications to understand how the communities in which their workplaces are located are progressing through the reopening phases identified in the Guidelines for Opening up America Again.”  The vagueness of the Guidelines leaves room for debate about which phase of protections should be provided for workers in comparison to individual views of “how the community is progressing” and the specific situation at an employer’s worksite to identify the risk for spreading COVID-19.  More complication exists for communities that have lifted restrictions on shelter-in-place requirements or where significant spikes in the number of new COVID-19 cases are detected.

During Phase One, businesses are instructed to evaluate making telework available, “when possible and feasible.”  For employees returning to the workplace, employers should limit the number of people coming into this space “in order to maintain strict social distancing practices.”  Where feasible, accommodations need to be considered for “workers at higher risk of severe illness, including elderly individuals and those with serious underlying health conditions.” This should include consideration of flexibilities based upon individual needs, including workers in households with members at higher risk of severe illness. There should be limitations on any non-essential business travel.

However, in addressing “workers at higher risk,” employer plans should be careful not to violate any prohibitions addressed by the U.S. Equal Employment Opportunity Commission (“EEOC”).  EEOC recently answered a series of questions addressing a number of concerns, including but not limited to older workers, pregnant workers and harassment of Asian workers and accommodations addressing the same.  See  https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws as well as the update article posted under the Nelson Mullins Labor Law links addressing the details of this new guidance.  

In Phase Two, there may be an easing of some of the restrictions from Phase One. However, businesses should continue to make telework available “where possible.”  Non-essential business travel can resume. Limits on the number of people allowed into the workplace can be eased, but, “moderate social distancing practices” should be maintained, depending on the nature of the business. The plan should continue to accommodate “vulnerable workers” as addressed in Phase One.

Finally, in Phase Three, there would be a return to normal operation, resuming unrestricted staffing of work sites. There is no specific “risk assessment level” tied to when Phase Three would be appropriate. However the guidance emphasizes that employers are to monitor changing outbreak conditions for worker exposure risks.  OSHA indicates that plans for all phases of reopening “should develop and implement policies and procedures that address preventing, monitoring for, and responding to any emergence or resurgence of COVID-19 in the work place or community.”

Based upon changing conditions regarding the risk of COVID-19, OHSA recommends reopening plans address the following elements, as examples, but not to be viewed as an exhaustive list:

  • Hazard Assessment: including determination of when, where, how and to what sources workers are likely to be exposed in the course of their job duties.
  • Hygiene: including practices for hand hygiene, respiratory etiquette, and cleaning and disinfection.
  • Social Distancing:  including practices for maximizing to the extent feasible and maintaining distance between all people, including workers, customers, and visitors, six feet of distance, as a general rule of thumb -- though social distancing practices may change as changes occur in community transmission of the virus and other criteria prompt communities to move through the phases of reopening.
  • Identification and Isolation of Sick Employees: including practices for worker self-monitoring or screening, and isolation and exclusion from the workplace of any employees with signs or symptoms of the virus.
  • Return to Work After Illness or Exposure: including after workers recover from the virus or complete the recommended self-quarantine period.
  • Controls:  including engineering and administrative controls, safe work practices and personal protective equipment (or “PPE”) determined on the basis of the hazard assessment.
  • Workplace Flexibilities: including those concerned with telework and sick leave policies.
  • Training: including practices for ensuring employees are trained on signs, symptoms, and risk factors, where, how and to what sources of virus exposure employees might be exposed at work, and how to prevent to spread of the virus at work.
  • Anti-Retaliation: including practices for ensuring no adverse or retaliatory action is taken against an employee that follows the guidelines or raises concerns about workplace safety issues.

These examples are in addition to that guidance already provided by OSHA in Guidance on Preparing Workplaces for COVID-19 and anything that might be addressed on the OSHA COVID-19 website.  Regardless of plan content, OSHA places an emphasis on training, and employers should have a clear point of contact for any worker questions or concerns. 

The Guidance provides reference to some applicable OSHA standards (i.e., such as those for respiratory protection and sanitation), and includes a section providing a response to frequently asked questions, including:

  • Can employers conduct work site COVID-19 testing?
  • Can employers conduct work site temperature checks or other health screening?
  • What OSHA requirements must an employer follow when conducting health screening, temperature checking, or COVID-19 testing?
  • Is there guidance on how to address various health screening and medical issues associated with COVID-19 to avoid violating other labor, disability, and employment laws? 
  • When can employees who have had COVID-19, or illness consistent with COVID-19, return to work?
  • How do I know if employees need PPE?

The Guidance closes with reference to some helpful OSHA links and includes a useful Appendix A addressing the applicability of general OSHA regulatory requirements to development of COVID-19 response actions.

Overall, the latest OSHA Guidance provides additional useful information that each employer should understand in the continued evaluation and evolution of their return-to-work action plans.   However, employers are reminded, from the outset of the Guidance document that:

This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace. The Occupational Safety and Health Act requires employers to comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a) (1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.

This is a stark reminder that whatever an employer does with respect to return-to-work plans, absent a specific rule, there is no certainty that it will be viewed as sufficient and that, where a legal inquiry occurs, each business response plan likely will be reviewed by OSHA and evaluated on a case-by-case basis, including consideration of workplace and community-based risk considerations.