COVID-19 Updates for EmployersPublished on April 30, 2020
In recent weeks, the Occupational Safety and Health Administration (OSHA) has issued guidance on several topics related to the COVID-19 pandemic. As businesses begin to reopen, this guidance will be important to employers. Guidance is still lacking in some areas, and businesses should continue to seek the most up to date information.
Good Faith Effort
Reduced business operations and social distancing protocols can make simple requirements such as employee training very difficult. The pandemic is also impacting the amount of Personal Protective Equipment (PPE) available for employers. OSHA has recognized that business closures, restrictions on travel, facility visitor prohibitions, and stay-at-home orders may limit what employers could normally provide for training, auditing, inspections, testing and other safety services. Recognizing these challenges, OSHA has directed its area offices to assess an employer’s good faith efforts to comply with standards that require annual or recurring audits, reviews, training or assessments. “Good faith” compliance efforts mean the employer has explored all options to comply with the applicable standards, including the use of virtual training. Employers should also consider implementing interim alternative protections and reschedule the required annual activity as soon as possible. If an employer’s workplace is closed, the employer should attempt to comply with the standards as soon as possible after re-opening the workplace. A key component for a business to demonstrate a “good faith” effort is documentation.
Cloth Face Mask
The Centers for Disease Control and Prevention (CDC) has recommended the use of homemade cloth face coverings in public settings, which raised many questions among those in the workplace law community. Are these DIY cloth face coverings considered personal protective equipment (PPE) pursuant to OSHA regulations? And if worn at work, who is responsible for providing them or paying for them? At this time, there is no definitive answer from OSHA, as to whether the cloth face masks are PPE. This is a critical answer, as it would open up a whole host of additional obligations for employers. To be clear, OSHA has not, as of yet, issued any guidance that cloth face coverings are recommended to protect the wearer, or that they are considered PPE. It’s also clear that cloth face masks are not considered respirators under OSHA rules.
OSHA standards generally require employers to provide PPE to employees free of charge, with some exceptions. Employers are not required to pay for “everyday clothing, such as long-sleeve shirts, long pants, street shoes, and normal work boots or ordinary clothing, skin creams, or other items, used solely for protection from weather, such as winter coats, jackets, gloves, parkas, rubber boots, hats, raincoats, ordinary sunglasses and sunscreen.”
There is a strong argument that the homemade cloth face coverings are not PPE because they provide little to no protection for the wearer. On the other hand, if an employer requires employees to wear them, rather than simply allowing them to be worn on a voluntary basis, then there could be an argument that cloth face coverings are PPE. It’s worth noting that some state and local governments are requiring cloth face coverings to be worn in public and by employees who interact with the public. In such situations, and depending on the state or local law, then employers are likely required to provide them and/or pay for them.
As plans to reduce restrictions and reopen businesses emerge, one criteria being discussed is the completion of a medical screening before allowing employees to enter a business. On April 17, the Texas Governor issued an Executive Order aimed at providing guidance for the reopening of retail businesses. In the order, the governor required a medical screening for employees each day they report to work.
“All employees must be screened before coming into the business for new or worsening cough; shortness of breath; sore throat; loss of taste or smell; feeling feverish or a measured temperature greater than or equal to 100.0 degrees Fahrenheit; or known close contact with a person who is lab-confirmed to have COVID-19. Any employee who meets any of these criteria should be sent home.”
For most businesses, the process of completing medical screening will present many challenges, such as employee privacy concerns, consistency of policy application (treating every employee the same), training or qualification of medical screener, access to proper equipment for screening (forehead scan thermometer), and availability and use of PPE by the medical screener. In addition, there is a strong argument the employees should be compensated for time during the screening process or while waiting to be screened. Due to the complexity of issues related to medical screening, employers should consult a member of the workplace law community for guidance.
Things have been and will continue to change rapidly. One can expect the variations in each state’s orders will continue. Policies and procedures will evolve and employers must stay informed. Lastly, while making that “good faith” effort, don’t lose sight of OSHA requirements, especially related to employee training as seasonal staff may be coming aboard.