As New Jersey begins to reopen under Governor Murphy’s reopening plan and more employees prepare to return to their physical workplaces, employers must continue to navigate a myriad of federal, state, and local guidance regarding how to best protect their workforces and prevent the spread of COVID-19. While many employers, particularly those outside of the construction industry, may not be used to regular dealings with the United States Department of Labor Occupational Safety and Health Administration (OSHA), all employers must consider OSHA’s COVID-19 Guidelines as they prepare reopening plans. While OSHA’s reopening guidance is advisory in nature, employers should remember that the Occupational Safety and Health Act’s (“OSH Act”) General Duty Clause (Section 5(a)(1)) requires all employers to provide employees with workplaces that are free from recognized harms that are likely to cause death or serious physical harm, which could include exposure to COVID-19. Thus, employers should be careful to ensure that their reopening plans comply with OSHA’s guidelines (along with more stringent state or local guidelines if they exist).
The OSHA Guidelines categorize risk of worker exposure to COVID-19 from low to very high and lay out specific measures of protection that are recommended at each risk level. Employers should consult this portion of the Guidelines for specific guidance. The Guidelines also outline more general steps that all employers should take to reduce the risk of exposure. Highlights include:
- Develop an Infectious Disease Preparedness and Response Plan: An employer that does not already have one should develop an infectious disease preparedness and response plan. Any such plan should be put together taking into account federal, state, and local guidance, as well as the level of risk associated with the employers’ worksites and job tasks. Considerations should include where and how employees could be exposed to COVID-19, non-occupational risk factors for employees at home and in community settings, workers’ individual risk factors, and any controls necessary to address such risks. The plan should also include details addressing how the employer will manage increased rates of worker absenteeism, the need for social distancing, options for conducting essential operations with a reduced workforce, and contingency plans for managing interrupted supply chains or delayed deliveries.
- Prepare to Implement Basic Infection Prevention Measures: Employers should implement hygiene and infection control practices, including promoting frequent and thorough hand washing, encouraging employees to stay home if they are sick, encouraging respiratory etiquette (like covering coughs and sneezes), and providing customers and the public with tissues and trash receptacles. Employers should determine whether they can establish other policies and practices, like telecommuting options, staggered shifts, and discouragement of employees’ use of other employees’ phones, desks, offices, and tools when possible, to increase physical distancing among employees. Employers should also maintain regular housekeeping practices, including routine cleansing and disinfecting of surfaces and equipment in the workplace with EPA-approved chemicals.
- Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate: A procedure through which an employer can promptly identify and isolate potentially infections persons is critical to protecting workers, customers, and others at the worksite. Thus, employers should develop policies and procedures for employees to report when they are sick or experiencing COVID-19 symptoms and should encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure. Employers should also have policies in place to immediately isolate those who have signs or symptoms of COVID-19.
- Develop, Implement, and Communicate about Workplace Flexibilities and Protections: Employers should ensure that their sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies and are encouraged to stay home when they are sick. Employers should also coordinate with companies that provide their businesses with contract or temporary employees about non-punitive leave policies and the importance of encouraging sick employees to stay home. Employers should be aware of workers’ concerns about pay, leave, safety, health, and other issues that may arise during infectious disease outbreaks and should provide adequate training and education on such topics.
- Implement Workplace Controls: The OSHA Guidance lists four types of controls as useful in protecting workers from exposure to COVID-19: engineering controls, administrative controls, safe work practices, and personal protective equipment (PPE). Engineering controls include increasing ventilation rates in the workplace and installing high-efficiency air filters, physical barriers (for example, clear plastic sneeze guards), drive-through windows for customer service where possible, and specialized negative pressure ventilation where appropriate. Administrative controls comprise changes in work policies or procedures to reduce or minimize exposure, like encouraging sick workers to stay home, minimizing contact among workers, establishing staggered shifts, discontinuing non-essential travel to locations with COVID-19 outbreaks, and providing employees with up-to-date education and training for employees in the workplace. Safe work practices include providing resources and work environments that promote personal hygiene. Finally, employers should provide employees with PPE that is properly fitted (and periodically refitted if applicable), consistently worn, regularly inspected, maintained, and replaced, and properly removed, cleaned, and stored or disposed of.
- Follow Existing OSHA Standards: Finally, employers should follow existing OSHA standards where applicable. In particular, employers should familiarize themselves with OSHA’s PPE standards, as well as the requirement in the OSH Act’s General Duty Clause that employers provide employees with workplaces that are free from recognized harms that are likely to cause death or serious physical harm.