Department of Labor Issues New Guidance on How to Identify and Prevent Exposure to COVID-19
On January 29, 2021, the Department of Labor (Department) issued new guidance to employees and employers in non-healthcare settings about how to identify and prevent exposure to the novel Coronavirus.
02.05.21
The Department’s guidance is “advisory in nature, informational in content, and [is] intended to assist employers in providing a safe and healthful workplace.” To that end, the Department clarified that the guidance is not a standard, regulation or new legal obligation, but contains recommendations and descriptions of existing safety and health standards.
Department Guidance on How COVID-19 Spreads
The guidance describes how COVID-19 is contracted from contact with particles produced by infected individuals that exhale, talk, sneeze or cough. A less common form of transmission is when a healthy person touches an object that is contaminated and then touches their nose, mouth or eyes. Individuals that are infected with COVID-19 may be asymptomatic and the CDC estimates that over 50% of recent virus transmissions originate from asymptomatic people. COVID-19 particles can travel more than six feet, especially indoors.
Ways Workers Can Protect Themselves in the Workplace
The Department listed numerous ways that workers could protect themselves from COVID-19. The guidance did not guarantee protection from COVID-19, but were best practices that workers could employ for maximum protection, including:
- Staying six feet away from other people to avoid breathing COVID-19 particles (but noting that enclosed spaces or those with poor ventilation pose additional risks).
- Practicing good hygiene, including frequent handwashing and coughing and sneezing into your elbow (or a tissue).
- Wearing a facial covering, including appropriate masks (which protects the people around the worker, primarily, but may reduce the risk of contracting the virus) when closer than six feet away from another person.
Guidance to Employers to Respond to COVID-19
The Department reminded employers that under the Occupational Safety and Health Act employers are required to provide “a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm.” The Department continued that “[i]mplementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.” The guidance describes certain elements of effective COVID-19 prevention programs, including:
- Assigning a workplace coordinator to be responsible for COVID-19 issues on the employer’s behalf.
- Undertaking an assessment to identify potential workplace hazards related to COVID-19 (and involving workers in this assessment).
- Identifying measures that will limit the spread of COVID-19 in the workplace that focus on:
- Eliminating the hazard by sending home infected or potentially infected people from the workplace.
- Physical distance in communal work areas.
- Installing barriers when distance cannot be maintained.
- Using face covering.
- Improving ventilation.
- Using applicable PPE.
- Providing supplies for good hygiene.
- Routine cleaning and disinfection.
- Considering protections for high-risk employees, including appropriate reasonable accommodations.
- Examples of protections include better ventilation or the ability to telework.
- Establishing a communication system to allow employees to report, without reprisal, COVID-19 symptoms, potential exposures and potential hazards.
- Educating and training employees in COVID-19 policies and procedures in accessible formats and languages that employees speak.
- Instructing employees that are infected or potentially infected to self-quarantine.
- And, to the extent possible, allowing telework or working in an isolated area. Where this is not possible, allowing employees to use paid sick leave.
- This includes the isolation of employees that show symptoms at work.
- Performing cleaning and disinfection after people who are infected or suspected to be infected with COVID-19 have entered the facility.
- Providing guidance for screening and testing for COVID-19 infection.
- Recording and reporting COVID-19 infections and deaths pursuant to federal law.
- Implementing anti-retaliation protections and an anonymous process for workers to voice concerns about COVID-19 related hazards.
- Making COVID-19 vaccination available at no cost to eligible employees.
- Not distinguishing between vaccinated and those who are not for compliance with workplace protective measures.
- And complying with existing OSHA standards.
The Department’s guidance provides further detail into each of the above elements for a COVID-19 protection plan. Klehr Harrison’s employment lawyers are well-versed in the Department’s recommendations and are available to assist employers in interpreting and complying with Department guidance when implementing COVID-19 protection plans.
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.
Authors Jonathan Krause, partner, and Gregory Sellers, associate, are members of the Litigation Department at Klehr Harrison.