By: Theresa L. Nelson
With recent news of easing stay-at-home orders, employers that have been operating with limited employees or that were closed due to COVID-19 need to evaluate the next steps for returning employees to work and opening operations.
Any return-to-work plan must comply with all federal, state and local directives to ensure a safe and healthy workplace for every employee. Employers have several resources to check requirements to reopen their businesses and return employees to work, including the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), the World Health Organization (WHO) and their state and local government health officials.
Because the response to the pandemic continues to evolve, every employer must adjust any return-to-work plan if any new directives or requirements are issued. Employers should also continually assess if their plan meets the needs of their business and workforce.
State and Local Return to Work Requirements
The specific details each state will require for employees to return to work are not known for all businesses, and will likely differ depending on the nature, operation and size of the business. Each employer will need to refer to guidelines published and implemented by their state and local governments to ensure compliance. Inevitably, any return will include preventative measures that have been well publicized to the general public to slow the spread of COVID-19, such as no contact (i.e., stop handshaking), social distancing (which may require split shifts, lower employee counts, teleworking, etc.), proper hygiene, not appearing for work and/or isolation if sick or experiencing symptoms of COVID-19, and cleaning and disinfecting frequently used items and high-touch areas often. This will be updated once the specific details for Ohio and Kentucky’s orders to reopen are released.
OSHA and CDC Employee Protection Guidelines
In addition to complying with any directives from state and local government, employers must ensure they are complying with federal workplace safety standards. Under the Occupational Safety and Health Act of 1970 (the “Act”) general duty clause, employers are required to furnish employees with “employment and a place of employment … free from recognized hazards … likely to cause death or serious physical harm.” The Act also establishes personal protective equipment (PPE) standards that, prior to the pandemic may not have applied to certain industries, but may apply today. The Act’s PPE standard requires that employers provide PPE “wherever it is necessary by reason of hazards of … environment … encountered in a manner capable of causing injury or impairment … through absorption, inhalation or physical contact.” Even if employees provide their own PPE, the employer is responsible “to assure its adequacy, including proper maintenance, and sanitation of such equipment.”
OSHA, along with the U.S. Department of Health and Human Services, has published guidance for employers to prepare workspaces for operation during the pandemic. The interim guidance separates lower risk exposure employees (similar to the general public) from increased risk of occupational exposure (workers likely to perform job duties with medium, high or very high occupational exposures). Depending on the risk of exposure, employers must evaluate requirements to protect their employees through cleaning, social distancing, personal protective equipment, training on preventive measures as well has how to identify and isolate suspected cases. Access to OSHA’s interim guidance and more detailed guidance for specific worker groups at increased risk of occupational exposure can be found on the OSHA website. OSHA has publicly stated it will assess an employer’s good faith effort to comply with standards during the COVID-19 pandemic during the course of any inspection.
The Centers for Disease Control has also issued guidance to employers to clean and disinfect their workplace including cleaning hard surfaces with detergent or soap and water and then using EPA-registered household disinfectants. The CDC also recommended guidelines for cleaning clothing, electronics and soft surfaces. All CDC guidance documents can be found on its website.
OSHA Recordkeeping Requirements for COVID-19
Employers are required to keep records of certain occupational injuries and deaths under OSHA’s recordkeeping requirements set forth in 29 CFR Part 1904. However, if an employee contracts COVID-19, only confirmed cases* that are work-related** and meet general recording criteria*** must be recorded by the employer.
OSHA recognized that determining if a worker contracted COVID-19 in the workplace would be difficult for low risk exposure employees, and exercised its enforcement discretion to provide certainty to particular employers with employees at higher risk of exposure of their duty to maintain records of such injuries. Specifically, OSHA issued a memorandum stating that employers of “workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904.” OSHA also confirmed that until further notice, it will not enforce the recordkeeping requirements for other employers to make the same work-relatedness determinations, except where: There is objective evidence that a COVID-19 case may be work-related.
OSHA intended this enforcement policy to help employers outside of the healthcare industry, emergency response organizations and correctional institutions to focus their efforts on implementing good hygiene practices, and otherwise mitigating COVID-19’s effects, rather than making difficult work-relatedness decisions in circumstances where it is likely the employee became ill through community transmission.
Guidance for Employers
Employers should develop a return-to-work plan to implement proactive measures to comply with federal, state and local government requirements and orders. In addition, employers should ensure their plan addresses any specific needs for their particular operations and employees.
If you need any assistance with developing your specific return-to-work plan, please our office for assistance.
Theresa Nelson’s practice focuses on representing and defending clients in complex labor & employment, commercial litigation, and general civil litigation. She represents clients in employment-related disputes including wage and hour, harassment, discrimination, disability accommodation (ADA), FMLA, wrongful or retaliatory discharge, breach of contract, restrictive covenants and intellectual property disputes. She is licensed in Kentucky and Ohio.
Strauss Troy is a full-service law firm that delivers solution-oriented legal services to clients through expertise, communication, and collaboration. With offices in Ohio and Kentucky, Strauss Troy serves clients in practice areas including corporate and business law, criminal and white collar defense, domestic relations and family law, labor and employment law, local government, real estate law, tax planning and compliance, and trust and estate planning.
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*A confirmed case of COVID-19 means an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID 19. See www.cdc.gov/coronavirus/2019-ncov/php/reporting-pui.html.
** Under 29 CFR § 1904.5, an employer must consider an injury or illness to be work-related if an event or exposure in the work environment (as defined by 29 CFR § 1904.5(b)(1)) either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in 29 CFR § 1904.5(b)(2) specifically applies. See www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.5.
*** Under 29 CFR § 1904.7, an employer must consider an injury or illness to meet the general recording criteria, and therefore to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. An employer must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness. See www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.7.