This week, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced its inspection policies and procedures, including what type of information its inspectors are looking for in regards to COVID-19 related matters. These standards are federal OSHA standards, which represent the minimum standards. Employers must look at what their state, local, tribal, and/or territorial (SLTT) governments require or recommend in addition to federal OSHA requirements.

Given the daily changing legal landscape, we strongly encourage employers to reach out to Raimondo & Associates with questions regarding specific situations. We are closely monitoring these developments. Because of these frequent developments, and the need to adapt the general guidance below to specific circumstances, employers should consult counsel regarding specific circumstances.

At a general level, the legal rules and guidance we summarize below should not be applied in a manner that would prevent employers from taking reasonable, common-sense steps to protect the health and safety of employees, customers, vendors and their communities. There are many nuances and fact-specific elements that make individualized legal counsel on these questions of critical importance.

Q: What are OSHA Certified Safety and Health Officials’ (CSHO) standards for evaluating employers? 

OSHA’s recently released guidance to CSHOs recommends that they evaluate the following to ensure employer preparedness for COVID-19 matters: 

  1. Determine whether the employer has a written pandemic plan as recommended by the CDC. Cal-OSHA requires all employers to establish and implement an Injury and Illness Prevention Program (IIPP) to protect employees from all worksite hazards, including infectious disease.  Employers must update their IIPP’s to include the employer’s procedures on preventing the spread of COVID-19.  Please see the attached publication issued by Cal-OSHA for guidance for agricultural employers.  All other industries, please contact our office for guidance.  
  2. Review the facility’s procedures for hazard assessment and protocols for PPE use with suspected or confirmed COVID-19 patients.
  3. Determine whether the workplace has handled specimens or evaluated, cared for, or treated suspected or confirmed COVID-19 patients. 
  4. Review other relevant information, such as medical records related to worker exposure incident(s), OSHA-required recordkeeping, and any other pertinent information or documentation deemed appropriate by the CSHO. This includes determining whether any employees have contracted COVID-19, have been hospitalized as a result of COVID-19, or have been placed on precautionary removal/isolation.
  5. Review the respiratory protection program and any modified respirator policies related to COVID-19, and assess compliance with 29 CFR § 1910.134.
  6. Review employee training records, including any records of training related to COVID-19 exposure prevention or in preparation for a pandemic, if available.  For agricultural employers, Cal-OSHA requires employers to provide training to employees on information related to COVID-19.  Please see the attached publication issued by Cal-OSHA for guidance on training topics. 
  7. Review documentation of provisions made by the employer to obtain and provide appropriate and adequate supplies of PPE.
  8. Determine if the facility has airborne infection isolation rooms/areas, and gather information about the employer’s use of air pressure monitoring systems and any periodic testing procedures.
  9. Agricultural employers must consider and address the challenges of providing enough shade and rest areas so that employees are maintaining a distance of at least six feet from others.  Cal-OSHA recommends limiting crews, staggering break and lunch times, and providing additional shaded areas.

Q: What precautions does OSHA recommend that employers implement?

OSHA recommends that employers implement the following precautions to materially reduce employees’ exposure to COVID-19:

  • Administrative Controls 

Managing the transmission of infectious diseases such as COVID-19 relies heavily on the implementation of administrative controls and good work practices. Preparedness should involve planning for the implementation of administrative controls and good work practices to protect affected employees. The following are recommended controls: 

  • Develop measures to support expeditious triage and isolation (or cohorting) of suspected or confirmed COVID-19 patients to minimize unprotected employee exposure.
  • Limit the number of persons entering isolation rooms to the minimum number necessary for patient care and support.
  • Provide dedicated patient-care equipment for suspected or confirmed COVID-19 patients.
  • If tolerated, place facemasks on suspected or confirmed COVID-19 patients to reduce employees’ exposure.
  • Consider offering enhanced medical surveillance and screening to workers who perform the riskiest tasks or activities.
  • Personal Protective Equipment

Perform a workplace hazard assessment as required by 29 CFR § 1910.132(d) to determine the tasks that necessitate the use of personal protective equipment (PPE) such as face masks, gloves, goggles, and respirators. 

  1. Provide gloves made of latex, vinyl, nitrile, or other synthetic materials, as appropriate, when there is contact with body fluids, including respiratory secretions.
  2. Assure that employees wear appropriate protective clothing (e.g., an isolation gown) when it is anticipated that clothes or a uniform may get soiled with body fluids, including respiratory secretions.
  3. Use eye and face protection if sprays or splatters of infectious material are likely. Goggles and a half-face respirator, or a full-face respirator, should be worn while performing aerosol-generating procedures. Use of a full face shield in front of a respirator may also prevent bulk contamination of the respirator.
  4. Training and Information

Provide training, education, and informational materials about the risk of COVID-19 exposure associated with workers’ job tasks and activities. 

  1. If PPE will be used, explain why it is being used. Educate and train workers about the protective clothing and equipment appropriate to their current duties and the duties they may be asked to assume when others are absent.
  2. Explain how to use basic hygiene (e.g., hand washing, covering mouth and nose with a tissue when coughing or sneezing) and social distancing precautions that will be implemented and why they are effective.
  3. Ensure materials are easily understood and available in the appropriate language and educational level for all workers.
  4. Post signs asking workers, customers, and the general public to follow basic hygiene practices.

Q: What should employers include in a Pandemic Preparedness Plan?

Pandemic preparedness plans should consider and address the level(s) of risk associated with various worksites and job tasks workers perform at those sites. Such considerations may include:

  1. Where, how, and to what sources of COVID-19 might workers be exposed, including:
    1. The general public, customers, and coworkers; and
    1. Sick individuals or those at particularly high risk of infection (e.g., international travelers who have visited locations with widespread sustained (ongoing) COVID-19 transmission, healthcare workers who have had unprotected exposures to people known to have, or suspected of having, COVID-19).
  2. Non-occupational risk factors at home and in community settings.
  3. Workers’ individual risk factors (e.g., older age; presence of chronic medical conditions, including immunocompromising conditions; pregnancy).
  4. Controls necessary to address those risks.
  5. Contingency plans for situations that may arise as a result of outbreaks, such as:
    1. Increased rates of worker absenteeism;
    1. The need for social distancing, staggered work shifts, downsizing operations, delivering services remotely, and other exposure-reducing measures;
    1. Options for conducting essential operations with a reduced workforce, including cross-training workers across different jobs in order to continue operations or deliver surge services; and
    1. Interrupted supply chains or delayed deliveries.

Pandemic preparedness plans should also consider and address the other steps that employers can take to reduce the risk of worker exposure to COVID-19 in their workplace. As appropriate, all employers should implement good hygiene and infection control practices, including but not limited to: 

  1. Encourage workers to stay home if they are sick.
  2. Employers should develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19. 
  3. Promote frequent and thorough hand washing, including by providing workers, customers, and worksite visitors with a place to wash their hands. If soap and running water are not immediately available, provide alcohol-based hand rubs containing at least 60% alcohol.
  4. Encourage respiratory etiquette, including covering coughs and sneezes.
  5. Employers should explore whether they can establish policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance among employees and between employees and others if state and local health authorities recommend the use of social distancing strategies.
  6. Discourage workers from using other workers’ phones, desks, offices, or other work tools or equipment, when possible.
  7. Maintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment
  8. Where appropriate, employers should develop policies and procedures for immediately isolating people who have signs and/or symptoms of COVID-19, and train workers to implement them. Move potentially infectious people to a location away from workers, customers, and other visitors. Although most worksites do not have specific isolation rooms, designated areas with closable doors may serve as isolation rooms until potentially sick people can be removed from the worksite.
  9. Take steps to limit spread of the respiratory secretions of a person who may have COVID-19. Provide a face mask, if feasible and available, and ask the person to wear it, if tolerated. 
  10. If possible, isolate people suspected of having COVID-19 separately from those with confirmed cases of the virus to prevent further transmission—particularly in worksites where medical screening, triage, or healthcare activities occur, using either permanent (e.g., wall/different room) or temporary barrier (e.g., plastic sheeting).
  11. Restrict the number of personnel entering isolation areas.
  12. Protect workers in close contact with (i.e., within 6 feet of) a sick person or who have prolonged/repeated contact with such persons by using additional engineering and administrative controls, safe work practices, and PPE. 
  13. Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
  14. Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
  15. Be aware of workers’ concerns about pay, leave, safety, health, and other issues that may arise during infectious disease outbreaks. Provide adequate, usable, and appropriate training, education, and informational material about business-essential job functions and worker health and safety, including proper hygiene practices and the use of any workplace controls (including PPE). Informed workers who feel safe at work are less likely to be unnecessarily absent.