COVID-19: OSHA Offers Guidance To Employers and Employees in New FAQs

COVID-19: OSHA Offers Guidance To Employers and Employees in New FAQs

On July 2, 2020, OSHA published Frequently Asked Questions[1] on COVID-19 topics.  OSHA updated previous guidance and incorporated guidance from other federal agencies.  The FAQs provide links to employment-related resources involving workplace safety and health topics, including COVID-19 issues.  OSHA appears to be following CDC guidance on health and safety best practices for businesses having employees return to work, such as COVID-19 testing, returning to work best practices, such as disinfecting the workplace, cleaning face coverings, healthcare settings, and others.  As we have noted previously, while an employer must provide personal protection equipment (“PPE” – think healthcare workers), face coverings are not considered by OSHA to be PPE and employers do not have to provide them.  While OSHA, a federal governmental body, does not require face masks in all workplaces, OSHA encourages them (as well as social distancing), best practices may dictate use of them, and state/county/city orders may require that employers provide them.

As for other issues, all employers should conduct risk and hazard assessments for all categories of employees and create plans to address how to keep employees safe in the workplace.  One such hazard that an employer should pre-plan for is an employee testing positive for COVID-19.  OSHA gives guidance on this to both the employer and employee:  the employee should report this information to the employer so that the employer can take appropriate action to protect the rest of the employees.  OSHA does not require employers to notify other employees if one worker gets COVID-19; however, employers must take appropriate steps to protect other workers from exposure to COVID-19 in the workplace.  These steps might include specific actions, such as cleaning and disinfecting the work environment, notifying other workers to monitor themselves for signs/symptoms of COVID-19, or implementing a screening program in the workplace (e.g., for signs/symptoms of COVID-19 among workers).

The CDC Guidance for Business and Employers[2] recommends employers determine which employees may have been exposed to the virus and inform employees of their possible exposure to COVID-19 in the workplace; however, employers should maintain confidentiality as required by the Americans with Disabilities Act (ADA)[3], and the information disclosed and method of disclosure must comply with applicable federal, state, and local laws.

Employers and workers can visit the U.S. Equal Employment Opportunity Commission’s COVID-19 webpage[4] and frequently asked questions[5] to learn more about this topic.

In any case, employers should train employees about COVID-19 protocols in the workplace and teach/explain how the virus spreads, minimizing the risk of exposure on the job, and appropriate disinfecting, basically anything touched in the workplace.  The FAQs do not cover the new concern that COVID-19 may be airborne and OSHA’s recommendations to employers on how to address that concerning problem.

But, at least OSHA provides virtual outreach trainers through the OSHA Training Institute Educational Center and it reminds both employers and employees that no one should retaliate against workers for raising a health and safety concern about the workplace related to COVID-19.  OSHA’s FAQs also encourages employees to address any questions or concerns that the employees believe they are being exposed to COVID-19 with the employer as a first step.   While employees can be required to return to work (unless there is an operative governmental order requiring stay-at-home social distancing), OSHA explains that there is an exception if an employee: (a) believes returning may subject them to face death or serious injury; and (b) tried but was unable to have the employer correct the condition causing the concern, and (c) there is insufficient time to file an OSHA complaint.  In that case, the employee can refuse to return to work and, as is often the case, can file a complaint with OSHA, which will likely trigger an inspection of the workplace and review of policies, protocols, practices and activities.  And, those employees who believe they were being retaliated against for complaining, may file a whistleblower protection complaint.

Employers walk a fine line of wanting to reopen and give employees active, on-site employment, but must do so carefully and thoughtfully.

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Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  While intended as information and educational, it is considered advertising under applicable various laws of some states, and as such, EC encourages you to call us to discuss these matters as they apply to you or your business.