Business and Legal Insights

As businesses reopen and employees working remotely begin to return to their workplaces, employers are facing difficult questions on how to prepare their workplaces to operate in the midst of a deadly pandemic.  The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”), tasked with assuring safe working conditions for employees in the United States, recently published guidance to assist employers and workers on how to safely return to the physical workplace during the COVID-19 pandemic.

OSHA’s Guidance on Returning to Work advises employers how to develop and implement strategies for basic hygiene, disinfection, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training. This guidance is intended to build upon previous guidance from the U.S. Department of Labor, the Centers for Disease Control and Prevention, and the White House, and does not replace other guidance previously issued.

Planning for Reopening: OSHA’s Three-Phase Guidance

OSHA’s Guidance divides the reopening of businesses into three phases, with different suggestions based on which phase the business is operating under.

PHASE 1: During Phase 1, as determined by each respective state’s reopening plan, OSHA advises businesses to consider making telework available when possible and to limit the number of employees that return to work to a number that enables the employees to maintain strict social distancing practices. Accommodations should be made during this phase for workers at higher risk of severe illness. OSHA also recommends that non-essential travel should be limited during this time.

PHASE 2: During Phase 2, businesses are advised to continue to make telework available where possible, but restrictions on the number of employees in the workplace may be eased, provided social distancing is still maintained. Businesses should continue to accommodate vulnerable individuals; however, non-essential travel may resume.

PHASE 3: During the third and final Phase, businesses are permitted to resume unrestricted staffing of workplaces.

Guiding Principles for Employers’ Reopening Plans

Employers should develop policies to address the risks and concerns at each phase of the reopening process, including what steps should be taken to help prevent, monitor and respond to any emergence or resurgence of COVID-19 in the workplace or community. These reopening plans should address the following:

• Hazard Assessments to determine when, where, how, and from what sources employees may be exposed to COVID-19;
• Hygiene best practices for hand washing, respiratory etiquette, cleaning, and disinfection (high traffic areas should be targeted for enhances cleaning and disinfection with EPA registered disinfectants);
• Social Distancing practices to maximize and maintain distance between all workers, customers, and visitors to the business, including the limitation of business occupancy, demarcation of 6-feet intervals in common spaces, and the posting of social distancing reminders and directional signs;
• Identification and Isolation of Sick Employees, including the self-monitoring of employees and the isolation of any employees potentially exposed to COVID-19 from the workplace;
• Return to Work procedures for individuals who have been isolated from work due to illness or exposure to COVID-19, the procedures for which should be consistent with CDC discontinuation of isolation guidelines;
• Engineering and Administrative Controls to ensure safe workplace practice, the use of personal protective equipment (where applicable), barrier shields, and other controls necessary to protect employees, customers, and guests based on the employer’s Hazard Assessments;
• Workplace Flexibilities, including evaluating existing policies and procedures to facilitate the appropriate use of telework, leave, and other options to minimize exposure;
• Training of employees to ensure that the employees know the signs, symptoms, and risks associated with COVID-19 and how to help minimize exposure in the workplace; and
• Anti-retaliation practices to ensure that no adverse action is taken against an employee for adhering to the new guidelines, or for otherwise raising workplace safety concerns.

OSHA notes that these topics merely provide the guiding principles for reopening plans, and are not intended to be an exclusive list. For additional considerations, employers should review OSHA’s Guidance on Preparing Workplaces for COVID-19 and the U.S. Equal Employment Opportunity Commission’s guidance on Coronavirus and COVID-19.