Hunton Employment & Labor Perspectives

The US Occupational Safety and Health Administration (“OSHA”) recently published Guidance for Preparing Workplaces for COVID-19 (“Guidance”), outlining steps employers can take to help protect their workforce. The Guidance focuses on the need for employers to implement engineering, administrative, work practice controls and personal protective equipment (“PPE”), as well as considerations for doing so. While there is no specific OSHA standard covering infectious disease or COVID-19 in particular, some OSHA requirements may apply to preventing occupational exposure to the virus including OSHA’s Bloodborne Pathogens standard (29 C.F.R. § 1910.20) Personal Protective Equipment (29 CFR 1910 Subpart I) Hazard Communication (29 C.F.R. § 1910.1200) and Recording and Reporting Occupational Injuries and Illnesses (29 C.F.R. § 1904). Also, the General Duty Clause of OSHA which requires employers to provide a “place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

OSHA’s Guidance identifies various steps that every employer can take to reduce the risk of worker exposure to COVID-19 in the workplace, including the development of an Infectious Disease Preparedness and Response Plan (“Plan”), which should take into account the level(s) of risk associated with various worksites and job tasks workers perform at those sites. As part of the Plan, employers should consider implementing workplace controls based on risk zones. OSHA has divided workplaces into four risk zones, according to the likelihood of employees’ occupational exposure during a pandemic. These risk zones are:

• Lower Risk - Employees whose jobs do not require contact with people known to be or suspected of being public infected with COVID-19 or frequent and/or close contact with (i.e., within six feet of) the general public.
• Medium Risk. Employees whose jobs require frequent and/or close contact with (i.e., within six feet of) people who may be infected with COVID-19 but who are not known or suspected COVID-19 patients. In areas where there is ongoing community transmission, this category includes employees who have contact with the general public, such as in schools, high-volume retail settings, and high-population-density work environments.
• High Risk. Employees with high potential for exposure to known or suspected sources of COVID-19, such as healthcare delivery and support staff and medical transport workers.
• Very High Risk. Employees with high potential for exposure to known or expected sources of COVID-19 during specific medical, postmortem, or laboratory procedures, such as healthcare, laboratory, or morgue workers.

Workplace controls vary widely for the different work zones. For employees at Lower Risk, OSHA recommends no additional Engineering Controls or Personal Protective Equipment except to monitor public health communications about COVID-19 recommendations and ensure that workers have access to that information. For Medium Risk employees recommendations include installing sneeze guards, offering face masks to ill employees and customers to contain respiratory secretions until they are able to leave the workplace (i.e., for medical evaluation/care or to return home) and wear some combination of gloves, a gown, a face mask, and/or a face shield or goggles. High Risk and Very High Risk recommendations include isolation rooms, enhanced medical monitoring and wearing respirators.

Other elements of the Plan should include:

• Identification of Sources of Exposure to Workers - the general public, customers and coworkers; and sick individuals or those at particularly high risk of infection.
• Prepare to Implement Basic Infection Prevention Measures - discourage workers from using other workers’ phones, desks, offices or other work tools, maintain regular housekeeping practices, routine cleaning and disinfecting of surfaces, equipment and other elements of the work environment.

• Develop Policies and Procedures for Prompt Identification and Isolation of Sick People - considerations for employer protocols in connection with responding to an employee who is experiencing COVID-19 symptoms, including isolation and protection of workers in close contact with the sick person.

Develop, Implement and Communicate Workplace Flexibilities and Protections - encouraging sick employees to stay home; ensuring sick leave policies are flexible and consistent with public health guidance medical care.