OSHA’s Guidance on Returning to Work During COVID-19
Insight provided by Wayne E. Pinkstone, Partner, and Lucy Li, Associate with Fox Rothschild

OSHA recently published guidance for “nonessential businesses” that are intending to reopen and allow their employees to return to work. This guidance is intended to supplement the U.S. Department of Labor and U.S. Department of Health and Human Services’ existing Guidance on Preparing Workplaces for COVID-19 and the White House’s Guidelines for Opening up America Again. Additionally, employers should continue to monitor state and local guidelines for best practices for worker protection. We discuss some key highlights from OSHA’s recent guidance below.

A Three-Phase Reopening Plan
Generally, OSHA has suggested a three-phase reopening plan:

Phase 1: Employers should keep telework available for employees when feasible and appropriate. Maintaining strict social distancing practices for employees returning to the office is imperative and may require limiting the number of returning employees. Employers should remain flexible in making accommodations for those who are high-risk, elderly individuals and those with underlying health conditions. Nonessential business travel should be limited.

Phase 2: The most notable difference from “Phase 1” is that nonessential business travel may resume. Employers should continue to allow telework if feasible and should maintain social distancing practices.

Phase 3: The final phase is a removal of all restrictions and the recommencement of normal business operations.

Transitioning from one phase to the next is based on geographical prevalence of COVID-19. But in general, employers should follow all applicable guidance from local, state and federal authorities when determining when to reopen and/or transition to subsequent phases.

Items to Consider for Reopening Plans
Additionally, OSHA has outlined key areas that employers’ reopening plans should address:

1. Hazard Assessment: Assess tasks performed by employees to determine which employees may be more susceptible to occasional exposure. Additionally, this should help guide social distancing practices, utilization of Personal Protective Equipment (PPE) and other controls set within the workplace.
2. Hygiene: Employers should provide basic hygiene supplies, soap, water, paper towels and hand sanitizer (60% alcohol) and encourage employees to frequently sanitize.
3. Social Distancing: Business occupancy should be limited to maintain social distancing guidelines. Employers should post signs to remind employees, customers and visitors to maintain social distancing.
4. Identification and Isolation of Sick Employees: Employers should establish a protocol for employees who become sick and remind employees to self-evaluate at home for symptoms of COVID-19 prior to reporting to work.
5. Return to work after illness or exposure: Continue to refer to Centers for Disease Control and Prevention (CDC) guidelines for discontinuing self-isolation after an illness.
6. Controls: Implement controls, barriers and shields to assist in enforcing social distancing guidelines. This can include limiting break room capacity and restricting large in-person meetings to video conference calls.
7. Workplace Flexibility: Evaluate policies for maintaining telework when appropriate and feasible.
8. Training: Ensure employees are aware of risks of exposure to COVID-19, and inform them of the precautions taken to reduce exposure. Train workers on proper usage of PPE: donning, cleaning, storing and disposing.
9. Anti-Retaliation: Ensure workers understand their rights to safe and healthful work, as well as prohibitions against retaliation for raising workplace health and safety concerns.

In addition to the foregoing, employers should remain cognizant of existing OSHA guidelines regarding PPE, respiratory protection, and sanitation.

Testing or Screening for COVID-19 Symptoms
Per OSHA’s guidance, employers are permitted to conduct worksite SARS-CoV-2 testing, temperature checks and other health screens. Employers who conduct testing must do so in a transparent, non-retaliatory, non-discriminatory manner. Testing can be implemented in various ways including temperature screening, questionnaires, self-checks or self-questionnaires. Employers who implement such screening measures need to maintain confidentiality of employee medical information consistent with the requirements of the Americans with Disabilities Act.

Employers do not need to make a record of temperatures or other health information when they screen workers. However, if employers record this information, it may qualify as a medical record under the Access to Employee Exposure and Medical Records standard (29 CFR 1910.1020). If records are made or maintained by a physician, nurse or other health care personnel they will qualify as “medical records” under the Access to Employee Exposure and Medical Records standard. In such circumstances, medical records must be maintained for the duration of each employee’s employment plus 30 years thereafter, and employers must follow confidentiality requirements when maintaining such records.

Employers must also adequately protect workers who are screening and testing other workers from exposure to COVID-19. Additional information on how to do so is available here.