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Coronavirus Health & Safety Guidance: OSHA Gives New Direction to Employers

This week, OSHA released new guidance for employers, giving recommendations on how to reduce worker exposure to coronavirus in the face of the COVID-19 situation – a situation that the World Health Organization has now labeled a “pandemic.” The guidance discusses regulations relevant to this situation, including the General Duty Clause under the Occupational Safety and Health Act of 1970 (OSH Act), which requires that employers provide a workplace “free from recognized hazards likely to cause death or serious harm” (previously discussed here), and the regulations governing required use of Personal Protective Equipment (PPE), such as respirators, face masks, and gloves.

Foremost among OSHA’s advice is to plan now. A failure to put a disease preparedness plan in place for your workforce, complete with appropriate protective measures, before it is needed can increase the risk of harm to both workers and business in the event of a major outbreak.

OSHA offers several suggestions/recommendations to employers who are interested in developing or updating a preparedness plan. First, identify risk factors in your workforce that may increase the possibility of exposure to COVID-19. This includes whether workers regularly interact with individuals suspected to be ill or with the general public, or whether your office is located in an area experiencing community transmission of COVID-19. OSHA notes that whether an employer is obligated to provide PPE to workers depends on the kinds of risk factors that the workers face. Second, implement basic infection prevention techniques and other workplace protections in your business. These measures can range from reminding your workforce to wash their hands, to instituting remote work programs or flexible shifts, to installing controls like sneeze guards (under appropriate circumstances). Third, be prepared to identify and isolate individuals suspected of being infected with the virus. The guidance refers readers to the CDC’s guidance on spotting symptoms of the virus to help guide proper identification or self-reporting. Objective, reasonable, and uniform procedures in the identification of COVID-19 symptoms are essential for employers, as the potential application of anti-discrimination, anti-retaliation, and privacy laws must be considered. Fourth, develop a contingency plan for the possibility that a serious outbreak of COVID-19 does occur in your area. The plan should account for increased possibility for absenteeism, social distancing controls, supply disruptions, and the need to maintain essential operations, among other things.

In support of the recommendations above, the guidance provides rules of thumb on how to identify the risk profile of your workforce. The highest risk categories, “High” and “Very High,” are limited to a narrow range of individuals, mostly including health care workers who regularly interact with or are around individuals suspected or confirmed to have the coronavirus. The other categories, “Medium” and “Low,” apply more broadly. “Medium” risk workers primarily include those who are frequently in close contact with travelers or, in areas of community transmission, the general public. “Low” applies to workers who do not have similar regular contacts with the public.

The guidance recommends that employers implement varying levels of precautions and controls for each of the risk profiles. Importantly, it notes that employers must provide PPE to “Very High” and “High” risk workers, including respirators. Employers may be obligated to provide PPE to “Medium” risk workers when that requirement depends on their location and the type of exposure risks their workers face.

Overall, the guidance provides detailed advice and additional resources to employers who are looking for ways they can better protect their workforce, maintain a safe and compliant workplace, and prepare for the possibility of a COVID-19 outbreak.

For any Coronavirus-related legal questions, please contact a member of V&E’s Coronavirus Taskforce or visit our Coronavirus: Preparation & Response site for a list of contacts and additional resources we hope will be helpful.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.