OSHA Issues Reopening Guidance for Non-Essential Businesses

The Occupational Safety and Health Administration (OSHA) has released reopening guidance for businesses deemed "non-essential" by local authorities. This guidance, released on June 18, 2020, was developed to supplement OSHA's previously released guidance in March 2020 on preparing the workplace for the novel coronavirus (COVID-19). The guidance is advisory in nature and does not create new standards or legal obligations. Notwithstanding the advisory nature of the publication, employers should carefully review OSHA's recommendations because this guidance may assist with meeting preexisting legal obligations, such as adhering to the Occupational Safety and Health Act's (the OSH Act) General Duty Clause and supplying appropriate amounts of personal protective equipment (PPE).

OSHA Reopening Phases

Reopening should be consistent with the lifting of stay-at-home orders and other federal, state, local and tribal directives. OSHA generally divides reopening into three distinct phases that mirror the phased reopening plans implemented by states. While not identical to states that have four phases of reopening (such as New York and Massachusetts), OSHA's three phases of reopening provide unique guidance for each phase.

• Phase 1: Limiting the number of individuals in the workplace during Phase 1 is a primary objective. Accordingly, employers should consider limiting the number of people in the workplace in order to maintain strict social distancing practices. OSHA recommends that employers consider making telework available. Similarly, OSHA recommends that employers consider accommodations for high-risk employees (e.g., those over age 65) or those employees who have household members who are high-risk.
• Phase 2: During Phase 2, businesses can resume non-essential business travel but should continue to make telework available when possible. Extreme staffing restrictions can be eased but only to the extent that moderate to strict social distancing can be observed. Accommodations for vulnerable workers described in Phase 1 should continue.
• Phase 3: Businesses can resume normal staffing during Phase 3 but should continue to maintain, among others, the hygiene, social distancing and recommended workplace control policies applicable to all phases.

Policies and Protocols for Employer Consideration

Reopening plans will not be uniform among all employers; plans need to be tailored to the unique operations of each business. OSHA makes clear that, during all three phases of reopening, employers should implement policies that address hazard assessment, basic hygiene (e.g., hand hygiene, cleaning and disinfection), social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee trainings that are appropriate for the particular phase. OSHA's guidance provides examples for each policy, but the examples given are not an exhaustive list and may not be applicable to all employers. Employers should carefully consider their individual workplaces and implement relevant policies and procedures to address COVID-19.

• Hazard assessment: Hazard assessment includes practices designed to identify possible COVID-19 exposure sources for workers. For example, employers could consider exposure to the public and specific job tasks performed by employees to determine operational exposure.
• Social distancing: Examples of how to implement social distancing practices include limiting business occupancy to the number of workers/customers that can reasonably allow for proper social distancing, demarcating 6 feet on the floor in high-traffic areas, and posting signage to remind employees and customers to maintain at least 6 feet of distance.
• Hygiene: Hygiene include practices to address hand hygiene, respiratory etiquette, and cleaning and disinfection. Employers should consider supplying hand sanitizer with at least 60 percent alcohol to employees, cleaning high-traffic areas, posting informational posters addressing proper etiquette, and ensuring that soap, water and paper towels are available in restrooms.
• Identification and isolation of sick employees: Employers should consider implementing screening protocols in order for employees to monitor signs and symptoms of COVID-19. Employers should instruct employees who are sick to stay home. In the event that an employee begins to show symptoms while in the workplace, protocols should be created to manage ill employees in the workplace, including details about how and where a sick employee will be isolated (in the event they are unable to leave immediately).
• Return to work after COVID-19 illness or exposure: Any employee returning to the workplace should abide by Centers for Disease Control and Prevention (CDC) guidelines for ending isolation or quarantine.
• Workplace controls: Workplace control practices include engineering and administrative controls, safe work practices and PPE. Examples of appropriate workplace controls include placing shield barriers at checkout counters, staggering work shifts and holding meetings by teleconference to reduce interaction between employees.
• Workplace flexibilities: Workplace flexibilities not only include allowing telework but also reconsidering sick leave policies. Employers should evaluate existing leave policies that can help reduce exposure between employees. It is important to note that revision of sick leave policies is not required (to the extent they are consistent with applicable law), but evaluating these policies is just one example of ways that employers should consider reducing workplace exposure.
• Training: Employers should train employees on proper PPE use. Employers should not assume that employees know how to properly wear basic PPE, such as a face mask. Employers should train employees on proper PPE use (e.g., a face mask needs to cover both the nose and mouth).
• Anti-retaliation: Employers should implement policies (if none already exist) that notify employees they have the right to a safe work environment and they cannot be retaliated against for raising workplace safety or health concerns.

These policies and procedures are designed to help employers meet their obligations under the OSH Act's General Duty Clause. The above list is not exhaustive and employers may need to implement additional policies and protocols to meet their obligation to furnish to employees a workplace that is free from recognized hazards.

Next Steps

Employers should carefully evaluate their existing policies to see if they incorporate recommendations and examples from OSHA's new guidance. For more information or assistance on this topic or with any other OSHA matters, please contact the authors or other members of Holland & Knight's OSHA, Workplace Safety and Whistleblower Claims Team.

Previous Holland & Knight OSHA Alerts

• Further OSHA Update for Employer COVID-19 Recording Obligations, May 21, 2020
• COVID-19 OSHA Follow-Up: Agency Updates and Additional Recommended Employer Practices, April 27, 2020
• COVID-19: Recording and Reporting Obligations Under the Occupational Safety and Health Act, March 24, 2020

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.