The COVID-19 pandemic has altered the reality of workplace safety and corresponding industry standards. Employers face dramatically different workplace challenges and resulting new obligations regarding safety precautions and worker protections. Throughout the pandemic, federal agencies such as the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC) have provided guidance concerning workplace safety.
This Holland & Knight alert addresses practical considerations and obligations for employers when establishing safety plans to reopen the workplace, including following federal, state and local laws, regulations and guidance covering employee use of personal protective equipment (PPE) and deep cleaning the workspace.
OSHA has advised that employers should focus their response efforts on developing and implementing effective COVID-19 safety policies for the workplace. OSHA requires employers' safety policies to cover the work environment, defined as the "establishment and other locations where one or more employees are working or are present as a condition of their employment." OSHA's broad definition of the workplace includes an employee's home, including if an employee is working from home during COVID-19. Further, the employer's obligation in implementing a COVID-19 work environment safety policy remains consistent with an employer's duty of care under OSHA's General Duty Clause to "furnish to each of its employees … a place of employment which [is] free from recognized hazards that [cause] or are likely to cause death or serious physical harm to its employees," given that there are no specific COVID-19 OSHA standards.
Under OSHA's standards, employers are responsible for providing a safe work environment even if workers are employed by, for example, a third-party subcontractor or are independent contractors. Employers should therefore consider reviewing agreements with temporary staffing agencies, subcontractors, independent contractors and other third-party vendors to ensure updates to workplace safety plans are updated consistently in response to COVID-19.
OSHA has historically made clear that employers have limited responsibilities when it comes to protecting employees at home. OSHA draws a clear distinction between home offices and other home-based employment, such as home manufacturing. OSHA has stated that it will not hold employers liable for an employee's home office and will not inspect home offices. OSHA will, however, inspect an employee's home-based manufacturing operation if OSHA receives a complaint that indicates there is a risk for physical harm. The employer may be liable for risks caused by materials or equipment that the employer provides or otherwise requires to be used as part of the employee's home-based manufacturing operations. OSHA has not weighed in or offered further guidance on the work-from-home issue during COVID-19.
OSHA's "duty of care" requirement for workplace safety is created and shaped by several factors, including industry standards, case law and published regulatory guidance. To date, no court decision or OSHA administrative decisions have been issued that define or articulate an employer's duty of care with respect to COVID-19 workplace safety obligations. An employer's adherence to government guidance is a key factor that OSHA considers when assessing whether the employer has fulfilled its duty of care, or its "good faith" efforts to comply with the OSHA standards and guidance, and therefore is an effective step that employers can take to ensure compliance.
OSHA and the CDC have released guidance to businesses on how to handle COVID-19. The contents of a workplace safety policy vary by employer. OSHA has identified the following non-exhaustive list of practical COVID-19 safety considerations for employers to consider: physical distancing, telework, amending sick leave policies, alternating shifts, personal hygiene, use of PPE, hazard control and deep cleaning protocols. In addition, the CDC has recommended the following non-exhaustive list of safety protocols for all employers in response to COVID-19:
OSHA and CDC guidance is helpful in implementing safety policies for COVID-19 (and thus meeting their duty of care to their workers). Because federal agency guidance will undoubtedly continue to evolve, employers are cautioned and advised to regularly monitor agency guidance.
PPE has become commonplace in most workspaces in response to COVID-19. Employers are under an obligation from OSHA to properly train employees on proper PPE use. (See Holland & Knight's previous alert, "COVID-19 OSHA Follow-Up: Agency Updates and Additional Recommended Employer Practices," April 27, 2020.) The CDC recommends that any time an individual is in public (including the workplace if interacting with other individuals), the individual should wear cloth face coverings in public settings where other social distancing measures are difficult to maintain. The CDC still recommends that the public use cloth face coverings and not surgical masks or N95 respirators, which should be reserved for healthcare workers and other medical first responders.
The CDC has provided guidance concerning PPE use generally and for healthcare industry and essential workers specifically. This guidance includes identifying proper face masks and other PPE along with safely optimizing PPE usage.
OSHA identifies PPE requirements based on the degree of risk of COVID-19 exposure that an employee may face in the workplace. OSHA divides employees into the following four risk categories with corresponding PPE recommendations:
Employers must also comply with applicable state and local requirements. For example, while OSHA does not explicitly require use of masks for retail and restaurant workers, many states have now required such protection. New York and Massachusetts now require the use of masks at all times inside grocery stores, pharmacies and other retail stores. Other states such as California and Florida do not have such statewide orders, but some local authorities have ordered the use of PPE. OSHA and many states, including New York, require employers to provide PPE to the workforce at the employer's expense.
Deep cleaning the workplace should be one of the first tasks that an employer undertakes when reopening a workplace. The CDC has published guidance to assist employers in this regard.
The CDC makes a clear distinction between cleaning surfaces with soap and water and applying disinfectant. Some surfaces need to be cleaned only with soap and water. The CDC states that, as an example, surfaces and objects that are not frequently touched need only to be cleaned and need not be disinfected. The CDC warns businesses not to apply disinfectant on items used by children, especially any items that children might put in their mouths. Items that have been disinfected can be toxic to children if swallowed. This is important to consider for restaurants and other businesses that have specific areas for children.
Under current CDC guidance, if a business has been closed and unoccupied for seven days or more, cleaning with soap and water is all that is required. COVID-19, as currently understood, cannot survive on surfaces longer than seven days. Even though the CDC does not require disinfectant for businesses closed more than seven days, businesses should still consult state and local health authority guidance.
CDC recommends disinfectant for hard, non-porous surfaces that are frequently touched by multiple individuals. The CDC recommends that these surfaces be, at a minimum, disinfected daily. Examples of these surfaces include tables, doorknobs, light switches, countertops, handles, desks, phones, keyboards, toilets, faucets and sinks, gas pump handles, touch screens and ATMs. The U.S. Environmental Protection Agency (EPA) also has a list of disinfectants approved to protect against COVID-19. OSHA also recommends that businesses consult the EPA list of disinfectants before applying in the workplace.
Businesses should ensure that they have a routine cleaning and disinfecting plan in place when reopening. Effective routine maintenance is designed to reduce the risk of exposure to COVID-19 for workers and customers. Although the CDC recommends that frequently touched surfaces be disinfected at least daily, businesses should consider more frequent cleaning and disinfecting. For example, the CDC recommends that certain surfaces and objects in public spaces, such as shopping carts and point-of-sale keypads, should be cleaned and disinfected after each use to mitigate exposure to COVID-19.
This Holland & Knight alert offers an overview of safety considerations and obligations that employers must address when reopening the workplace, including the use of PPE and deep cleaning. Due to the fluctuating COVID-19 landscape, employers are advised to continue to monitor developments in the law and in agency guidance. Establishing effective workplace safety plans during this pandemic requires employer diligence and flexibility.
States are easing or phasing out their stay-at-home orders. Nonessential businesses will begin to reopen and their employees will return to work. Many essential businesses that have continued to operate likely will see an increase in the number of employees returning to the workplace. But concerns about transmission of COVID-19 remain. Many states have or can be expected to impose significant obligations on employers to ensure that their workplaces remain safe and that the risk of COVID-19 transmission is minimized. This laudable objective presents many challenges to all employers.
As shelter-in-place orders are being lifted and employers are permitted to reopen their workspaces, they will need to do so with caution while wading through a patchwork of local, state and federal requirements and understanding what guidance or recommendations are mandatory.
To assist companies in their efforts, Holland & Knight has created a series of alerts focused on return-to-work issues. In addition, as state and local governments continue to issue new orders for May, Holland & Knight provides updated summaries of state and local orders to help companies keep track of regulations and requirements that are essential to all businesses.
Previous alerts in our COVID-19 Return to Work Series can be viewed below.
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DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.
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