Businesses operating on-site during the COVID-19 pandemic must take extra precautions to ensure they are not subjecting their employees and others on-site to an outbreak that can be avoided by reasonable protections.
Business must, therefore, ensure their employees are either maintaining the most current guidelines on social distancing or provide tools reasonably intended to protect those workers that are unable to do so. OSHA has released guidance on preparing workplaces for COVID-19, available here. OSHA does not issue any new standards but directs businesses to OSHA’s General Duty Standard, which requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to . . . employees.” When in doubt, place the safety of employees (and any persons on-site with the workers such as patients, residents, customers, and workers from other companies) as priority.
Note also that OSHA regulations state employees may refuse to come to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSHA) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”
- Employers should develop an infectious disease preparedness and response plan that can help guide protective actions against COVID-19. Plans should consider and address the level of risk associated with worksites and job tasks employees perform within the four risk categories outlined in the OSHA COVID-19 guidance.
- Consider how employees might become exposed, from ingress and egress to the building, common area usage and work duties. Ask where, how and to what extent workers may be exposed, including from the general public, customers or other coworkers. Consider what duties each employee has and whether those duties can be performed while maintaining social distancing.
- OSHA also recommends employers analyze types of controls to reduce exposure to hazards without relying on employee behavior:
- Install high-efficiency air filters;
- Increase ventilation rates in the work environment;
- Install physical barriers, such as clear plastic sneeze guards; or
- Install a drive-through window for customer service.
- Review federal, state and local recommendations during development of contingency plans for situations that may arise as a result of outbreak including:
- Increased rate of worker absenteeism;
- The need for social distancing, staggered work shifts, downsizing operations, remote service delivery, etc.; and
- Interrupted or delayed supply chains and deliveries.
- Determine whether it is appropriate to change work policies or procedures to reduce or minimize exposure to a hazard.
- Minimize contact among workers, clients and customers by replacing face-to-face meetings with virtual communications and implementing telework if feasible.
- Establish alternating days or additional shifts that reduce the total number of employees in a facility at a given time, allowing them to maintain safe distance from one another while maintaining a full onsite work week.
- Discontinue non-essential travel to locations with ongoing COVID-19 outbreaks. Regularly check CDC travel warning levels here.
- Develop emergency communications plans, including a forum for answering employee concerns and internet-based communications, if feasible.
- Implement infection control practices, including:
- Provide adequate, usable and appropriate training and education about business-essential job functions and worker health and safety, including proper hygiene practices and the use of any workplace controls (including personal protective equipment).
- Implement affirmative daily reporting regarding COVID-19 symptoms from your employees. Implement temperature testing as well if the employer implements a process that protects private health information under HIPAA and adheres to the confidentiality requirements of the Americans with Disabilities Act (ADA).
- Although an employer may not run afoul of the ADA, employees who report individual risk factors (e.g., age; presence of chronic medical conditions, including immunocompromising conditions; pregnancy) require engaging in an interactive process to determine if those workers can be accommodated with respect to this risk factors. The CDC recommends employers offer these workers at risk different tasks less likely to expose them.
- Require sanitary measures such as frequent and thorough hand washing, including by providing workers, customers, and worksite visitors with a place to wash their hands.
- Follow the cleaning and disinfection recommendations of the CDC.
- Require workers to stay at home if they are sick.
- Require respiratory etiquette, including covering coughs and sneeze.
- Prohibit use of other workers’ phones, desks, offices, or other work tools and equipment, when possible.
- Develop policies and procedures for prompt identification and isolation of sick people
- Employers should instruct and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure.
- Employers should develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19.
- Employers should develop policies and procedures for immediately isolating people who have signs and/or symptoms of COVID-19, and train workers to implement them. Move potentially infectious people to a location away from workers, customers, and other visitors.
- Restrict the number of personnel entering isolation areas.
- Develop, Implement and Communicate about Workplace Flexibilities and Protections
- Ensure compliance with the paid sick leave policies of the Families First Coronavirus Response Act (FFCRA) and also that other non-FFCRA leave policies are flexible and consistent with public health guidance, and that employees are aware of these policies. Be aware of employee concerns about pay, leave, safety, health and other issues that may arise during infectious disease outbreaks.
- Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
- Employee Vacation or Other Travel
- Employers may restrict the work-related travel of their employees to affected areas, and many companies have banned all non-essential air travel for the time being, which is permitted.
- CDC currently recommends that individuals stay home for 14 days from the time they left an area with widespread, ongoing community spread (Level 3 Travel Health Notice countries) and practice social distancing. The CDC is also recommending that individuals who were on a cruise in the past 14 days limit interactions with others; if the individual was on a ship that reported a case of COVID-19, the individual is advised to stay at home for 14 days and practice social distancing.
- Employers should not force employees to cancel personal travel plans, though they can certainly make a recommendation against travel to certain regions. However, courts have held that the protections of the ADA do not apply where an employer takes an employment action based on the potential for an employee to become ill and disabled in the future.
- Employers should check the OSHA and CDC websites regularly for updates about recommended personal protective equipment (PPE). During an outbreak of an infectious disease, such as COVID-19, recommendations for PPE specific to occupations or job tasks may change depending on geographic location, updated risk assessments for workers and information on PPE effectiveness in preventing the spread of COVID-19.
Looking for additional resources on COVID-19? Visit our resource page here.