To assist employers in continuing to plan for and respond to COVID-19, the Department of Labor (DOL) has issued guidance on COVID-19 and OSHA. <1> With respect to COVID-19, employer obligations start with OSHA’s general duty clause, which requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. (29 USC §654(a)(1) Section 5(a)(1)).
To determine employer obligations during the COVID-19 outbreak, OSHA has established the occupational risk pyramid, which divides job tasks into four risk exposure levels: very high, high, medium and lower risk (caution).
The level of risk depends on industry type, need for contact within six feet of people exposed to or infected with COVID-19, and requirement for repeated or extended contact with people exposed to or infected with COVID-19. While OSHA’s position is that most U.S. workers fall in the lower risk (caution) or medium-risk levels, it has developed guidance for employers: Guidance on Preparing Workplaces for COVID-19.
Steps All Employers Can Take to Reduce Workers’ Risk of COVID-19 Exposure
The following summarizes OSHA’s suggestions for the basic steps every employer should take to reduce the risk of exposure to COVID-19 in the workplace
1. Develop an Infectious Disease Preparedness and Response Plan
Plans should address the following:
- Where and how employees might be exposed to COVID-19, including the general public, customers and co-workers
- Risk factors at home and in community settings, including workers’ individual risk factors such as older age, presence of other medical conditions,<2> and exposure to a family member with COVID-19
- Contingency plans for situations that may arise as a result of a COVID-19 outbreak, such as:
- Increased rates of absenteeism
- Need for social distancing, staggered work shifts, downsizing operations, delivering services remotely
- Options for conducting essential operations with a reduced workforce, including cross-training workers across different jobs to continue operations or deliver surge service.
2. Prepare to Implement Basic Infection Prevention Measures
For most employers, protecting workers will depend on implementing good hygiene and infection-control practices. Employers should:
- Promote frequent and thorough handwashing by providing workers, customers and visitors with a place to wash their hands with soap and running water or, alternatively, alcohol-based hand rubs containing at least 60% alcohol
- Encourage workers to stay home if they are sick
- Encourage respiratory etiquette, including covering coughs and sneezes, and provide tissues and trash receptacles
- Explore whether the physical distance can be increased among employees and between employees and others with flexible worksites (e.g., telecommuting), and/or flexible work hours (e.g., staggered shifts)
- Discourage workers from using other workers’ telephones, desks, offices, or other work tools and equipment
- Maintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces and equipment.
3. Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, If Appropriate
Policies and procedures, including the following, may assist in protecting workers by promptly identifying potentially infectious individuals.
- Encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect exposure.
- Develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19.
- If appropriate, develop policies and procedures for immediately isolating people who display symptoms of COVID-19 and for limiting the spread of COVID-19 by providing individuals with face masks.
4. Develop, Implement and Communicate About Workplace Flexibilities and Protections
Similar to suggestions issued by CDC, OSHA suggests employers exercise flexibility in developing and administering various workplace policies. It is important to keep in mind that this guidance is advisory in nature, and it is not a standard or a regulation. With that said, it is important for employers to be aware that OSHA has issued this guidance in the context of the general duty clause, and employers would be wise to consider the feasibility of these suggestions from both a financial and operational perspective.
Specifically, OSHA guidance suggests the following:
- Actively encourage sick employees to stay home
- Ensure sick leave policies are flexible
- For employers with temporary or contract workers, talk with the companies that provide those workers about the importance of sick employees staying home, and encourage them to develop nonpunitive sick leave policies
- Do not require a health care provider’s note for employees who are sick with acute respiratory illness to return to work, since health care providers may be extremely busy and not able to provide timely documentation
- Maintain flexible policies that permit employees to stay home to care for a sick family member, and be aware that more employees than usual may need to stay home to care for sick children or other sick family members<3>
- Be aware of worker concerns about pay, leave, safety and health
- Work with insurance companies providing health benefits and state and local health agencies to provide information to workers about medical care related to the COVID-19 outbreak.
5. Implement Workplace Controls: Engineering Controls, Administrative Controls, Safe Work Practices and PPE
Workplace controls are protection measures designed to control workplace hazards. OSHA uses a “hierarchy of controls” from the most effective to the least effective: engineering controls, administrative controls, safe work practices and personal protective equipment (PPE).
Engineering Controls
Engineering controls reduce exposure to hazards without relying on worker behavior and include the following.
- Installing high-efficiency air filters
- Increasing ventilation rates in the work environment
- Installing physical barriers, such as clear plastic sneeze guards
- Installing a drive-through window for customer service.
Administrative Controls
Administrative controls are typically changes in work policy or procedures to reduce or minimize exposure to a hazard and require action by the worker or employer and include the following.
- Encouraging sick workers to stay at home
- Minimizing contact among workers, clients and customers by replacing face-to-face meetings with virtual communications and implementing telework if feasible
- Establishing alternating days or extra shifts that reduce the total number of employees in a facility at a given time, allowing them to maintain distance from one another while maintaining a full on-site work week
- Discontinuing nonessential travel to locations with ongoing COVID-19 outbreaks
- Developing emergency communications plans, including a forum for answering workers’ concerns and internet-based communications, if feasible
- Providing workers with up-to-date education and training on COVID-19 risk factors and protective behaviors
- Training workers who need to use protective clothing and equipment.
Safe Work Practices
Safe work practices are types of administrative controls used to reduce the duration, frequency or intensity of exposure to COVID-19, and include the following.
- Promoting personal hygiene that includes infection-protection measures, such as providing tissues, no-touch trash cans, hand soap, alcohol-based hand rubs containing at least 60% alcohol, disinfectants and disposable towels for workers to clean their work surfaces
- Requiring regular handwashing or use of alcohol-based hand rubs
- Posting handwashing signs in restrooms
Personal Protective Equipment (PPE)
While OSHA’s position is that engineering and administrative controls are more effective than PPE in minimizing exposure to COVID-19, PPE may also be needed to prevent certain exposures. PPE should not take the place of other prevention strategies but rather used along with them to minimize exposure risk. Examples of PPE include:
- Gloves
- Goggles
- Face shields
- Face masks
- Respiratory protection.
PPE is often specific to occupations or job tasks, and certain jobs require respirators. With respect to COVID-19, workers who work within six feet of patients known to be or suspected of being infected with COVID-19 are required to use respirators.
For more information regarding when PPE and respirators are required as well as the OSHA standards applicable to such requirements, OSHA has PPE standards (in general industry, 29 CFR 1910 Subpart 1) that require using gloves, eye and face protection, and respiratory protection.
In addition, where respirators are necessary to protect workers, or where employers require respirator use, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard (29 CFR 1910.134).
6. Follow Existing OSHA Standards
There is no specific OSHA standard covering COVID-19, but employers need to be guided by the general duty clause and, where applicable, the OSHA PPE standards discussed above.
Classifying the Risk of Worker Exposure in Your Workplace
OSHA recommends that all employers, irrespective of risk of exposure in their workplace, take steps 1-6 described above. Next, OSHA suggests that employers classify their risk of worker exposure to COVID-19 based on the occupational risk pyramid pictured below.
Lower Risk
Workers have minimal contact with the public and other co-workers. These jobs do not require contact with people known to be or suspected of being infected with COVID-19 and do not require frequent close contact with (i.e., within six feet of) the general public.
Employers should follow the guidance for the steps 1-6 set out above.
Medium Risk
Workers have frequent and/or close contact with (i.e., within six feet) of other people who may be infected but who are not known or suspected COVID-19 patients. Examples include workers who have contact with international travelers or workers who have contact with the general public, such as school workers, high population density work environments and high-volume retail settings.
Employers should follow the guidance for steps 1-6 set out above and also implement the following:
- Engineering controls: Install physical barriers, such as clear plastic sneeze guards where feasible
- Administrative controls include the following.
- Consider offering face masks to ill employees and customers to contain respiratory secretions until they can leave the workplace.
- Keep customers informed about COVID-19 symptoms and ask sick customers to minimize contact with workers until healthy again, such as by posting signs or sending automated messages.
- Where feasible, limit worksite access for customers and the public or restrict access to certain areas.
- Consider strategies to minimize face-to-face contact (e.g., drive-through windows, phone-based communication and telework).
- Communicate the availability of medical screening or other worker health resources.
- PPE: Workers may need to wear some combination of gloves, a gown, a face mask, and/or a face shield or goggles. PPE ensembles for medium-risk workers will vary by work task, the results of the employer’s hazard assessment and the types of exposures workers have on the job.
High and Very High Risk
High- and very high-risk workers are those with high potential for exposure to known or suspected sources of COVID-19. Very high-risk workers are those with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem or laboratory procedures that involve aerosol generation or specimen/collection handling.
Employers should follow the guidance for steps 1-6 set out above and also implement the following:
- Engineering controls in health care facilities should include the following.
- Ensure appropriate air-handling systems are installed and maintained.
- Isolate patients with known or suspected COVID-19 symptoms.
- Use isolation facilities to perform aerosol-generating procedures on patients or bodies with known or suspected COVID-19 symptoms.
- Use special precautions when handling specimens from known or suspected COVID-19 patients.
- Administrative controls in health care facilities should include:
- Develop and implement policies that reduce exposure, such as grouping COVID-19 patients when single rooms are not available.
- Post signs requesting patients and family members to immediately report symptoms of respiratory illness on arrival and use disposable face masks.
- Consider offering enhanced medical monitoring of workers during COVID-19 outbreaks.
- Provide all workers with job-specific education and training on preventing transmission of COVID-19.
- Ensure that psychological and behavioral support is available to address employee stress.
- Safe work practices: Provide emergency responders and other essential personnel who may be exposed while working away from fixed facilities with alcohol-based hand rubs containing at least 60% alcohol.
- PPE: Most workers at high- or very high-exposure risk likely need to wear gloves, a gown, a face shield or goggles, and either a face mask or respirator, depending on their job tasks and exposure risks. Workers in laboratories or morgue facilities may require additional protection such as medical/surgical gowns, fluid-resistant coveralls, aprons, or other disposable or reusable protective clothing.
OSHA and COVID-19 Takeaways
Developing and implementing a COVID-19 preparedness and response plan is not a one-size-fits-all proposition. Rather, the elements of a plan and the specific controls employers introduce will largely depend on the nature of their business and the level of interaction among employees and between employees and members of the public such as customers, clients, patients, vendors and students. As outlined above, following are the important steps.
- Review “Steps All Employers Can Take to Reduce Workers’ Risk of Exposure to COVID-19” recommended by OSHA.
- Classify the risk of worker exposure in your workplace.
- Implement the steps and workplace controls that are applicable to your particular work environment.
For more information, the full OSHA guidance can be found here. Also please make sure to check state and local safety rules and those pertaining to specific industries.
In addition, employers should bear in mind that OSHA is not the only legal consideration. With respect to COVID-19, there are other laws that come into play such as the Americans with Disabilities Act, federal and state anti-discrimination laws, FLSA, FMLA and the National Labor Relations Act. Accordingly, it is prudent to seek legal advice when developing or implementing policies to ensure compliance with all competing legal considerations.
More Information on COVID-19 Exposure and the Workplace
For additional information on the coronavirus and the workplace, visit these resources:
- The International Foundation Coronavirus (COVID-19) Resources page
- Posts from Word on Benefits:
- Free Member Webcasts:
- Coronavirus in the Workplace: U.S. Regulatory Considerations | Available on Demand
- Coronavirus and International Business Travel: What Employers Need to Know | Available on Demand
Endnotes
<1>Each state has its own worker safety requirements.
<2>Employers need to be mindful of disability discrimination laws regarding questioning workers about underlying medical conditions and/or taking action based on the existence or perceived existence of such conditions. Under the Americans with Disabilities Act and many state laws, employers are generally precluded from asking disability-related questions or from taking action based on an individual’s disability unless such disability poses a direct threat or is job-related and consistent with business necessity. It is important for employers to seek legal advice before making any such inquiries or taking any action.
<3>For employers subject to FMLA, employees are entitled to take family leave to care for a family member with a serious health condition. In most cases, it is likely that COVID-19 would meet the definition of a serious health condition in that it is either an illness that involves inpatient care in a hospital or a period of incapacity of more than three consecutive days and treatment two or more times by a health care provider within 30 days of the incapacity. Employers should look to state and local laws.
Guest Contributors:‘
Katherine A. Hesse, CEBS, ISCEBS-Fellow, is a partner in the law firm of Murphy, Hesse, Toomey & Lehane, LLP, in Boston, Massachusetts, where she practices primarily in labor and employment and employee benefits law. She serves as counsel to Fortune 500 companies, emerging businesses, government, tax-exempt organizations and large Taft-Hartley and governmental trusts. Hesse has served as President of the International Society of Certified Employee Benefit Specialists (ISCEBS) and serves on the International Foundation of Employee Benefit Plans Advisory Board of Directors and is chair of the Government Liaison Committee. She holds a B.A. degree from Smith College and J.D. degree from the Boston University School of Law.
Nan O’Neill is a partner in the law firm of Murphy, Hesse, Toomey & Lehane, LLP, in Boston, Massachusetts. She has 30 years of experience counseling and representing employers in all aspects of employment and traditional labor law. O’Neill has extensive experience in the litigation of employment-related disputes, including discrimination, reasonable accommodation, sexual harassment and wrongful termination matters, before state and federal courts and administrative agencies. She is a graduate of Boston College and the Georgetown University Law Center, where she served as articles and notes editor of the American Criminal Law Review and received awards for outstanding work in the study of labor law.
