OSHA Issues Reopening Guidance for Nonessential Businesses

This guidance supplements the U.S. Department of Labor’s and U.S. Department of Health and Human Services’ previously developed guidance on preparing workplaces for COVID-19 and the White House’s guidelines for opening up America again. The guidance provides general principles for updating restrictions originally put in place to slow the spread of COVID-19. OSHA’s guidelines are organized into three phases of reopening, including a “Frequently Asked Questions” section, with references to applicable OSHA Act provisions.

During phase one, employers should consider making telework available, when possible and feasible, within business operations. If employees must return to the workplace, then employers should maintain strict social distancing practices, including limiting the number of people in the workplace. In addition, where feasible, employers should consider providing accommodations for workers at higher risk of severe illness and those with household members at higher risk of severe illness.  Further, all non-essential business travel should be limited.

For phase two, employers should make telework available, but non-essential business travel may resume. Employers should continue maintaining moderate to strict social distancing practices (i.e., limiting the number of people in the workplace). This practice may be eased depending on the employer’s type of business. Employers should continue to consider providing accommodations for any vulnerable workers identified during phase one.

Lastly, in phase three, businesses may resume unrestricted staffing at worksites. OSHA recommends that employers continually monitor federal, state, and local government guidelines for updated information about ongoing community transmission and mitigation measures, as well as for evolving guidance on disinfection and other best practices for worker protection.

For all phases of reopening, employers should implement strategies for basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training. Overall, OSHA recommends that employers develop and implement policies and procedures that address preventing, monitoring for, and responding to any emergence or resurgence of COVID-19 in the workplace or community. In particular, these plans should address the following principles:

1. 1. Hazard assessment of how workers are likely to be exposed to COVID-19 in the course of their job duties
   2. Workplace hygiene
   3. Social distancing practices for maximizing to the extent feasible and maintaining the distance between all people
   4. Identification and isolation of sick employees
   5. Employee return to work after illness or exposure
   6. Implementation of engineering and administrative controls
   7. Workplace flexibilities for remote work and sick leave
   8. Training on the new workplace policies
   9. Anti-retaliation practices

The FAQ section discusses permissible worksite health screening and temperature checks. Health screenings are acceptable if applied in a transparent manner applicable to all employees and any such screening should maintain confidentiality as required by the Americans with Disabilities Act. The guidance recommends employers consider implementing health screening programs in conjunction with sick leave policies that encourage sick workers to stay home.  OSHA defers to CDC recommendations, as adapted by state and local health departments, regarding when employees may return to work after testing positive or exhibiting COVID-19 symptoms. In addition, the FAQ section addresses personal protective equipment (PPE). OSHA recommends employers consider modifying interactions in the workplace to reduce the need for PPE, especially in light of potential equipment shortages. The guidance notes that if PPE is needed, but not available, and employers cannot identify alternative means to accomplish business needs safely, then the work tasks must be discontinued.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Author Jonathan Krause is chair of the Litigation Department at Klehr Harrison.