April 15, 2020

The Occupational Safety and Health Administration (OSHA) has issued "Guidance on Preparing Workplaces for COVID-19" (the Guidance). Although the Guidance is not legally binding, OSHA does emphasize that employers must comply with existing safety and health standards and regulations published by OSHA or by applicable states with their own OSHA-approved plans. In addition, employers should keep in mind the Occupational Safety and Health Act's (OSH Act) General Duty Clause, which requires employers to "provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm."


Develop an Infectious Disease Preparedness and Response Plan

OSHA recommends that employers develop an infectious disease preparedness and response plan that addresses level(s) of risk associated with their worksites and the tasks performed at those sites. Such considerations may include:

  • Where, how, and to what sources of COVID-19 workers may be exposed to, including, for example, the general public, customers, and coworkers, sick individuals, or individuals at particularly high risk of infection
  • Non-occupational risk factors at home and in the community
  • Workers' individual risk factors, such as advanced age, the presence of chronic medical conditions, and pregnancy
  • Controls necessary to address those risks


Prepare to Implement Basic Infection Prevention Measures

OSHA notes that for most employers, emphasis should be placed on basic infection prevention measures such as:

  • Frequent and thorough hand washing and access to hand sanitizer containing at least 60 percent alcohol
  • Encouraging workers to stay home if they are sick
  • Encouraging workers to engage in respiratory etiquette, such as covering coughs and sneezes
  • Providing tissues and trash cans
  • Considering flexible scheduling and remote work
  • Discouraging workers from sharing equipment and workstations
  • Maintaining routine cleaning and disinfecting of the workplace


Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate

OSHA stresses that "prompt identification and isolation of potentially infectious individuals is a critical step in protecting workers, customers, visitors, and others at a worksite." OSHA recommends that employers:

  • Encourage workers to self-monitor for signs and symptoms of COVID-19
  • Develop policies and procedures for workers to report when they are sick or experiencing symptoms of COVID-19
  • If and as appropriate, develop policies and procedures for immediately isolating people who exhibit signs and/or symptoms of COVID-19, and train workers to implement them, including moving potentially infectious people to a location away from workers, customers, and other visitors and restricting access to the isolation area
  • If available, provide face masks to people who may have COVID-19 and ask those people to wear the masks


Develop, Implement, and Communicate about Workplace Flexibilities and Protections

OSHA recommends maintaining flexibility when dealing with HR matters, including:

  • Actively encouraging sick workers to stay home
  • Ensuring and making workers aware of sick leave policies that are flexible and consistent with public health guidance
  • Impressing upon staffing agencies the importance of sick workers staying home
  • Recognizing that health care providers may be overtaxed during this crisis, refraining from requiring workers to immediately obtain a health care provider's certification to validate illness or to return to work
  • Maintaining flexibility to allow workers to stay home to care for sick family members
  • Being sensitive to workers' concerns about pay, leave, safety, health, and other issues that may arise during infectious disease outbreaks
  • Providing appropriate training about business-essential job functions and worker health and safety, including proper hygiene practices and the use of any workplace controls (including PPE)


Implement Workplace Controls

OSHA suggests that the best way to control a workplace hazard is to "systematically remove it from the workplace, rather than relying on workers to reduce their exposure." With that concept in mind, according to OSHA, during a COVID-19 outbreak, the most effective protection measures are (listed from most effective to least effective): engineering controls, administrative controls, safe work practices, and PPE. In most cases, a combination of control measures will be necessary to protect workers from exposure to COVID-19, but of course the control measures that are appropriate for a particular business will depend on the nature of the workers' job duties and the workplace, itself.


Engineering Controls

"Engineering controls" are ways to isolate workers from work-related hazards. Examples of engineering controls for COVID-19 include:

  • Installing high-efficiency air filters
  • Increasing ventilation rates
  • Installing physical barriers, such as clear plastic sneeze guards


Administrative Controls

"Administrative controls" are controls that require action by the worker or employer. Examples of administrative controls for COVID-19 include:

  • Encouraging sick workers to stay at home
  • Minimizing contact among workers and customers by replacing face-to-face meetings with virtual communications and implementing telework whenever possible
  • Establishing alternating days or shifts that reduce the total number of workers in a facility at a given time and allow workers to maintain appropriate distance from one another
  • Developing emergency communications plans, including a forum for answering workers' concerns
  • Providing workers with appropriate training on COVID-19 risk factors and protective behaviors
  • Providing resources that promote personal hygiene, including no-touch trash cans, hand soap, alcohol-based hand rubs, disinfectants, and disposable towels for cleaning work surfaces
  • Requiring regular hand washing or using of alcohol-based hand rubs, and posting handwashing signs in restrooms


Personal Protective Equipment (PPE)

PPE may also be needed to prevent certain exposures, but it should not take the place of the other prevention strategies outlined above. Examples of PPE include gloves, goggles, face shields, face masks, and respiratory protection. OSHA recommends that employers check the OSHA and CDC websites regularly for updates about recommended PPE. PPE must be:

  • Selected based upon the hazard to the worker
  • Properly fitted and periodically refitted, as applicable
  • Consistently and properly worn
  • Regularly inspected, maintained, and replaced as needed
  • Properly removed, cleaned, and stored or disposed of, as applicable, to avoid risk of contamination

The types of PPE required during a COVID-19 outbreak will depend on the nature of the worker's job duties and the magnitude of the risk of infection while working. Workers, including those who work within six feet of patients known to be, or suspected of being, infected with COVID-19 and those performing aerosol-generating procedures, are required to use respirators, and OSHA outlines specific standards for respirators and respirator training in its guidance.


Follow Existing OSHA Standards

Employers should keep in mind that existing OSHA standards may also apply to protecting workers from exposure to and infection with COVID-19. While there are no specific OSHA standards specifically addressing COVID-19, some OSHA requirements may apply to preventing occupational exposure to COVID-19. Among the most relevant are OSHA's Personal Protective Equipment (PPE) standards, the General Duty Clause, and the Bloodborne Pathogens standard. These standards can be found here.

OSHA's guidance is particularly important for Illinois employers in light of the Illinois Workers' Compensation Commission's recent "Notice of Emergency Amendment" (see our related article here). The Commission's guidance provides that workers of essential businesses and operations who are diagnosed with COVID-19 are presumed to qualify for worker's compensation coverage, without the need to prove that the infection was acquired at work. It seems to us that employers employing any "COVID-19 First Responder or Front-Line Worker" (as defined in the Notice of Emergency Amendment) would be wise to put precautionary measures in place if they want to have any chance of rebutting that presumption.

If you have questions about OSHA's guidance or other employment challenges related to COVID-19, please reach out to your Much attorney or a member of our Labor & Employment group.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.