On January 29th, OSHA issued guidance on mitigating and preventing the spread of COVID-19 in the workplace. This guidance is meant to inform employers in most work settings outside of healthcare and help them in identifying and controlling the risk of employees being exposed or contracting COVID-19. There are 8 key measures outlined in this new guidance, but first, a refresher on if you are covered under OSHA or another entity.
What Employers are Covered by OSHA?
OSHA applies both federally and through state-run plans that are at least as effective as OSHA, meaning that it applies to most private sector employers and employees nationwide. OSHA defines an “employer” as “a person engaged in a business affecting commerce who has employees,” which is quite broad.
State and local employees are not covered by OSHA, but 22 states have an OSHA-approved state plan that provides OSH Act protections. In MVP’s practice area, Iowa has adopted such a state plan, which applies to both private sector and public employees. Illinois has an OSHA-approved state plan for public employees while private-sector employees are covered by Federal OSHA. In Arkansas, Kansas, Missouri, Nebraska, and Oklahoma, Federal OSHA covers private sector and most federal employees, but not state and local employees. Federal employees are not covered by OSHA, but federal agencies are required to have health and safety plans that meet the same standards of private employers.
Exclusions from OSHA include self-employed individuals, churches, domestic services, businesses that do not engage in interstate commerce, and farms that only employ immediate family members. OSHA also does not apply where another Federal agency regulates worker safety, including mining, the nuclear industry, and most aspects of transportation (which is covered by the Department of Transportation and the FMCSA).
Businesses with more than 10 employees must maintain OSHA injury and illness records, unless OSHA has exempted that business. As you will see later, this includes reporting work-related COVID-19 cases and deaths on a Form 300.
What Workers Need to Know
Emphasis on Physical Distancing
This guidance by OSHA repeatedly emphasizes the importance of social distancing as a key protection from workplace exposures. This includes noting that masks are complementary to physical distancing, NOT a replacement for physical distancing. Distancing is also the very first item listed as things for workers to know regarding COVID-19 protections in the workplace.
The Roles of Employers & Workers
OSHA notes that the most effective way to mitigate the spread of COVID-19 at work is through a COVID-19 Prevention Program. The guidance provides sixteen elements of an effective Prevention Program.
COVID-19 Prevention Program
- Assign a workplace coordinator
- Identify where and how workers may be exposed to COVID-19 at work through a thorough hazard assessment
- Identify measures that will limit the spread of COVID-19 in the workplace
- Separate and send home potentially infected workers
- Implement physical distancing requirements, including telework and remote work
- Install barriers where physical distancing cannot be maintained
- Use of face coverings
- Improve ventilation
- Use applicable PPE
- Provide supplies for good hygiene
- Routine cleaning and disinfection
- Consideration of protections for workers at a higher risk for severe illness
- Older adults and workers with serious underlying medical conditions
- Where possible, consider reasonable modifications for high-risk workers who can work from home (even part time) or in a less densely-occupied area
- Establish a system for communicating effectively with workers
- Ask workers to report, without fear of reprisal, any symptoms, possible exposures, or possible hazards in the workplace
- Educate and train workers on COVID-19 policies and procedures
- Emphasis on communicating clearly and in a language workers can understand
- Communicate basic facts about COVID-19 (how it is spread, physical distancing, use of masks, hand hygiene)
- Ensure that workers know who to communicate with and what their rights are
- Instruct workers who are infected or potentially infected to stay home and isolate or quarantine
- Make sure these policies do not punish such workers
- Minimize negative impact of quarantine and isolation on workers
- Allow telework or working in isolated areas where possible
- Allow use of paid sick leave and consider implementation of paid leave policies
- The Families First Coronavirus Response Act provides certain employers 100% reimbursement through tax credits to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 through March 31, 2021
- Isolate workers who show symptoms at work
- Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility. OSHA provides the following steps for a cleaning:
- Close areas used by the infected person
- Open outside doors and windows to increase air circulation
- Wait as long as practical before cleaning or disinfecting, ideally 24 hours
- Clean and disinfect all work areas and equipment used by the infected person
- Vacuum if needed using a vacuum with a HEPA filter
- Provide cleaning workers with disposable gloves
- After cleaning, disinfect with an appropriate EPA-registered disinfectant
- Provide guidance on screening and testing
- Recording and reporting COVID-19 infections and deaths
- Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19 hazards
- The OSH Act prohibits employers from discriminating against employees for raising a reasonable concern about infection control related to COVID-19 to the employer, the employer’s agent, other employees, a government agency, or to the public
- Make a COVID-19 vaccine available at no cost to employees
- Do not distinguish between workers who are vaccinated and those who are not
- Vaccinated employees must continue to follow protective measures such as physical distancing and face covering, as there is no evidence that COVID-19 vaccines prevent transmission of the virus at this time
- All other applicable OSHA standards
- These include: requirements for PPE (29 CFR 1910, Subpart I (e.g., 1910.132 and 133), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA’s requirements for employee access to medical and exposure records (29 CFR 1910.1020).
Additional Details on Key Measures to Limit the Spread
Isolation and/or Quarantine
Isolating workers who have or likely have COVID-19
- If workers have symptoms, they can return after:
- 10 days since symptoms first appeared; and
- At least 24 hours with no fever without fever-reducing medicine; and
- Other symptoms of COVID-19 are improving
- Some workers may need to stay home for longer than 10 days, if advised by a medical provider
- The ADA permits employers to require a doctor’s note from workers to verify that they are healthy and able to return to work
- The CDC does not recommend use of antibody tests to determine which workers can work, as they are not very reliable
Quarantine workers who have been exposed to COVID-19
- An exposure to COVID-19 includes:
- They were within 6 feet of someone with COVID-19 for 15 minutes or more
- They had direct physical contact with someone who has COVID-19
- They shared eating or drinking utensils with someone who has COVID-19
- Someone with COVID-19 sneezed or coughed on them
- Quarantine for 14 days after the last contact with someone who has COVID-19
- Watch for COVID-19 symptoms
- Stay away from people who are at high risk for getting very sick from COVID-19
Implement Physical Distancing in All Communal Work Areas
Limit the number of people in one place through:
- Telework or remote work
- Flexible hours
Increase physical space between workers and customers, and consider using physical distancing signs, tape marks, decals, or other visual cues to encourage individuals staying 6 feet apart.
Shift primary stocking activities to off-peak or after hours to reduce contact with customers.
Suppressing the Spread Using Face Coverings
OSHA recommends that employers provide all workers with face coverings, at no cost, unless a respirator is required. Employers must discuss the possibility of reasonable accommodation for workers who are unable or have difficulty wearing certain types of face coverings due to a disability.
Require any other individuals at the workplace, such as visitors and customers, to wear a face covering unless they are under the age of 2 or are actively consuming food or beverages.
The CDC has provided guidance on how to improve ventilation and prevent the spread of COVID-19, which can be found by clicking here: https://www.cdc.gov/coronavirus/2019-ncov/community/ventilation.html
Some of these guidelines are:
- Increase ventilation rates if possible
- Increase fresh outdoor airflow by opening windows and doors as weather allows
- Consider using a fan to exhaust air out an open window
- Disable demand-controlled ventilation
- Reduce or eliminate recirculation
- Improve central air filtration to the MERV-13 or highest compatible filter
- If ventilation cannot be increased, consider reducing occupancy of the building
Use PPE When Necessary
When the above measures cannot be implemented to protect workers fully, OSHA requires employers to provide PPE to supplement other controls. This includes:
- Determining what PPE is necessary
- Providing PPE, including respirators, face shields, gloves, and protective gowns at no cost
- Where PPE is not required under OSHA, some workers may have a right to PPE as a reasonable accommodation under the ADA
Provide Supplies Necessary for Good Hygiene
Ensure that workers, customers, and visitors have supplies to clean their hands frequently and cover their coughs and sneezes. This includes:
- Tissues and no-touch trash cans
- Soap and water or alcohol-based hand sanitizer that is at least 60% ethanol or 70% isopropanol
- Provide workers time to wash hands or use hand sanitizer and inform workers that soap and water is preferable to hand sanitizer if hands are visibly dirty. Important times for cleaning hands are:
- Before and after shifts
- Before and after breaks
- After blowing their nose, coughing, or sneezing
- After using the restroom
- Before and after preparing food
- After putting on, removing, or touching PPE and face coverings
- After coming into contact with surfaces touched by other people
This new guidance stems from President Biden’s Executive Order on January 21st on Protecting Workers Safety. OSHA is directed, by that same Executive Order, to “consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined necessary, issue them by March 15, 2021.” We will keep you updated if there are any new emergency temporary standards issued.
Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation.