OSHA Publishes Advisory “Guidance on Returning to Work”

The Occupational Safety and Health Administration (OSHA) published “Guidance on Returning to Work” (Guidance).  OSHA states that this “creates no new legal obligations” and is “advisory in nature.”  The Guidance is “intended to supplement the previously published Guidance on Preparing Workplaces for COVID-19 and the White House’s Guidelines for Opening up America Again. OSHA also advises that businesses must follow any state and local re-opening requirements.

Elements of Reopening Plan

In the Guidance, OSHA explains that all reopening plans should address the following:

• Hazard assessment, including practices to determine when, where, how, and to what sources of SARS-CoV-2 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, under which “[s]ix feet of distance is a general rule of thumb,” but noting that “social distancing practices may change as changes in community transmission of SARS-CoV-2 and other criteria prompt communities to move through the reopening phases.”
• Identification and isolation of sick employees, including practices for worker self-monitoring or screening, and isolating and excluding from the workplace any employees with signs or symptoms of COVID-19.
• Return to work after illness or exposure, which should be determined using CDC guidelines.
• Controls, including engineering controls (e.g., physical barriers), administrative controls (e.g., staggered work shifts, replacing in-person meetings with conference calls), and controls regarding personal protective equipment (PPE).
• Workplace flexibilities, including remote work and sick leave.
• Training, including training to recognize the signs and symptoms of COVID-19.
• Anti-retaliation practices to ensure that adverse actions are not taken against employees who adhere to safety guidelines or raise health and safety concerns.

Existing OSHA Standards Relevant to COVID-19

The Guidance includes an Appendix with references to OSHA safety standards relevant to COVID-19, such as its standards for PPE, respiratory protection, and sanitation. The Guidance explains that “cloth face coverings are not PPE, because they protect other people from the wearer’s respiratory secretions, rather than protecting the wearer.”  

The Guidance also reminds employers that, even where there is no OSHA standard specific to COVID-19, employers still have the responsibility to provide a safe and healthful workplace that is free from serious recognized hazards under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970.

Employer Frequently Asked Questions

The Guidance includes a section on Employer Frequently Asked Questions that addresses issues such as testing, temperature checks, and when a sick employee can return to the workplace. 

For temperature checks, OSHA recommends that “temperature screening efforts are likely to be most beneficial when conducted at home by individual workers, with employers’ temperature screening plans relying on workers’ self-monitoring and staying home if they have a fever or other signs or symptoms of illness, rather than employers directly measuring temperatures after workers arrive at the work site.”  See our article, available here, for further information regarding employee testing.

The Guidance cautions employers not to rely solely on negative tests or the absence of fever or other symptoms. Employers should also implement basic hygiene, social distancing, workplace controls, flexible remote work and sick leave policies, and employee training.  See our articles for further information regarding physical and logistical considerations for returning to the workplace, available here, and employee requests for leaves of absence and accommodations, available here.

OSHA Services and Programs

The Guidance also lists various services and programs that OSHA provides to employers. These include a free On-Site Consultation Program (www.osha.gov/consultation) for small to medium size employers (which is separate from enforcement and does not result in penalties or enforcement), as well as training and educational materials.

Next Steps

As noted above, the Guidance is merely advisory. Employers should make sure they comply with any mandatory state and local standards applicable to reopening a workplace when a stay-at-home order is lifted, such as the New York Forward guidelines, previously reported here.

Please reach out to any of our attorneys if you have any questions or need assistance in formulating a reopening plan.