South Carolina businesses have either continued to operate or are reopening in a confusing and uncertain environment with COVID-19 remaining a real threat for the foreseeable future based on the infection data provided by DHEC and CDC.

In order to avoid liability, employers will need to implement detailed protocols to keep their employees as safe as possible and to avoid any COVID-19 outbreak. This post summarizes guidance issued by OSHA and the CDC, the two authoritative agencies charged with addressing workplace safety. It is meant as a resource to all businesses and employers, whether returning to work, or continuing operations in compliance. OSHA Guidance (with reference to CDC guidelines) should be considered in developing your company’s own internal processes and procedures. Specifically, a written plan needs to be put into place carefully considering the guidance highlighted in this blog post.

This post details OSHA's COVID-19 Guidance and the CDC’s Interim Guidance for Businesses and Employers responding to COVID-19 but also provides a number of additional resources for employers to consider.

OSHA’s COVID-19 Guidance is a helpful and detailed step-by-step guide to protecting your workforce. In addition, OSHA indicated in its April 13 Interim Enforcement Memorandum that it will analyze an employer’s compliance with its OSHA COVID-19 Guidance and the CDC recommendations to determine if employers have done what they can to protect their workforce from exposure to COVID-19. In an April 16 Temporary Enforcement Memorandum, OSHA indicated it will exercise discretion in issuing citations when an employer shows its good faith efforts to eliminate or reduce exposure. Complying with OSHA’s COVID-19 standards is recommended for showing good faith.

While OSHA’s COVID-19 Guidance is not an official regulation, it is what OSHA believes is the industry standard for complying with OSHA’s General Duty Standard, Section 5(a)(1):

• Requires employers to "provide their employees with a workplace of employment free from recognized hazards that are causing or likely to cause the death or serious physical harm.”

OSHA’s COVID-19 Guidance

OSHA’s COVID-19 guidance outlines the protections recommended in order of importance, with Engineering and Administrative Controls being the most important. In addition to these general guidelines, OSHA issued industry-specific guidelines for healthcare workers, emergency first responders, dentists, and other industries.

I. Safety Controls

1. Engineering Controls

   • High-efficiency air filters and increased ventilation rates in the work environment

   • Install physical barriers such as plastic sneeze guards

   • Visitors should be excluded. If visitors must be permitted, they should be restricted to specific locations and required to complete the same daily inquiry forms used for employees.

2. Administrative Controls

   • Create staggered shifts or partial telework to reduce the number of individuals on premises

   • May non-essential employees telework and report to the office only when they need to?

   • Require essential employees on-site to remain in their work area and restrict movement beyond that area unless required to perform an employment duty

   • Prohibit movement within the facility other than where the employee needs to go to perform responsibilities

   • Restrict access to facilities by anyone other than those required to be present for work

   • Disseminate plans for communications with employees and to answer their questions

II. Exposure Controls

1. Assess each position and performance of duties to determine the risk of exposure to COVID-19 while performing duties from other coworkers or the public

2. Evaluate how work is being performed

3. Consider staggered shifts, staggered schedules, a mix of telework and onsite for non-teleworking positions

4. Must be able to prove efforts undertaken and enforced so it is important to ensure leaders are maintaining compliance throughout the workday

5. Where and how could your employees be exposed to COVID-19?

6. Analyze exposure under OSHA’s four risk categories by job title/position:

   • Very High Exposure, eg. Healthcare workers or morgue workers

   • High Exposure, eg. Healthcare delivery and support staff, mortuary workers

   • Medium Exposure, eg. Frequent or close contact (less than 6 feet) of people who may be exposed

   • Lower Risk, eg. Those not requiring contact with people who may be exposed or who are able to maintain social distancing per local guidelines

7. Assign appropriate personal protective equipment (PPE) specific to COVID-19 based on OSHA’s four risk categories per employment position

   • Select based upon hazard a worker will experience and, other than low-risk and at-risk workers, provide appropriate OSHA required PPE

     • Gloves, goggles, face shields

     • Respiratory protection (note there are five Enforcement Memorandums issued on respiratory protection alone)

     • Face masks

     • Plastic guards or other barriers between workspaces

     • All PPE must be fitted and periodically retrofitted

     • Must be consistently worn, and properly cleaned and stored

   • OSHA has analyzed some specific industries and included what PPE should be used per position

   • Train employees on the proper way to use PPE

     • Donning and doffing

     • Proper disinfecting and storage

     • Notify if equipment is damaged

   • Minimizing contact among workers

   • Have PPE available to protect those identified by the CDC as at-risk employees from exposure, listed below. Note: EEOC Pandemic Guidance reminds employers they cannot ask about any underlying conditions. Employers can advise their workforce that additional protections are available for CDC at-risk categories and to report to HR if any apply.

     • 65 years of age or older

     • People of all ages with underlying medical conditions, particularly if not well controlled, including:

       • chronic lung disease or moderate to severe asthma

       • serious heart conditions

       • immunocompromised - Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications

       • severe obesity (body mass index [BMI] of 40 or higher)

       • diabetes

       • chronic kidney disease undergoing dialysis

       • liver disease

       • pregnant employees

III. Prevention Measures

1. Safe work practices

• Reduce duration, frequency or intensity of exposure

• Provide required protections to employees

• Require regular cleaning and disinfection surfaces

  • Use EPA approved cleaning chemicals

  • Log cleaning by person and time

• Provide hand sanitizer (60% alcohol or more), tissues, no-touch trash cans
  
  2. Issue and update written policies and implement practices requiring

  • Hygiene (handwashing, respiratory etiquette, tissues, hand sanitizer)

  • Requiring employees to stay home if they have a fever or are sick

  • Quarantining employees who have a fever, symptoms of COVID-19, were exposed to COVID-19, traveled to hot spots, or by means of travel are deemed risky. Quarantine time 2-14 days

  • Reporting exposure, diagnosis, and travel using Daily Inquiry Form and temperature testing (of all visitors and employees)

  • PHI/ADA confidentiality should be maintained
    
    3. Process for isolating infectious individual

    • Assign to specific role per shift for immediate removal of an employee with symptoms or signs of COVID-19 and train the assigned workers

    • Identify location within employer’s spaces where access may be restricted and that is separate and apart from other common areas or areas where the employees are located. Be sure to have separate spaces for those who are diagnosed or have COVID-19 and those who have symptoms.

    • Equip the isolation room with masks (different than PPE other workers wear so that other workers do not confuse it) and gloves for use by individual possibly sick and also worker carrying out isolation duties

    • Follow CDC disinfection guidelines

IV. Reporting

1. COVID-19 is a recordable illness on OSHA Form 300

• Employers are responsible for recording cases of COVID-19 if all of the following requirements are met:

  • The case is a confirmed case of COVID-19, as defined by the CDC;

  • The case is work-related, as defined by 29 CFR § 1904.5;

    • Work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness

    • Work-related is presumed for exposures occurring in the work environment

  • The case involves one or more of the recording criteria set forth in 29 CFR § 1904.7

    • death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or significant illness or injury diagnosed by a physician

• OSHA acknowledges employers not in healthcare or emergency response may have difficulty making a determination as to exposures occurring at work and will not enforce § 1904.5 unless

  • There is objective evidence that a COVID-19 case is work-related, for example close working conditions without explanation

  • Employer knew or should have known

2. Time of Reporting Required

• Employers must report fatalities within 8 hours, in-patient hospitalizations within 24 hours

• Employers must respond to written requests within 5 days after receiving a request and have 15 days to provide records

• Rapid Response Investigations – be careful of what is provided/stated as other citations may arise from the response

CDC Guidelines

The CDC guidelines are referenced by OSHA in its April 13 Interim Enforcement Memorandum that employers should incorporate the CDC’s recommendations into business operations to ensure workplace safety. The CDC issued updated Interim Guidance for (non-healthcare) Businesses and Employers on May 3 that details the role businesses and employers have in responding to COVID-19. The CDC also issued helpful updated FAQs for businesses and workplaces on May 6, 2020.

The Interim Guidance recommends businesses and employers:

• Consider how best to decrease the spread of COVID-19 and lower the impact in your workplace by taking steps designed to:

  • Prevent and reduce transmission among employees

  • Maintain healthy business operations

  • Maintain a healthy work environment

This blog will only detail the first category of prevention recommendations that specifically should be considered when preparing the plan for maintaining workplace safety as recommended in the OSHA COVID-19 guidelines above, but businesses and employers should review the other two for recommendations on how to comply with processes as well as keep operations running during any exposure:

• Actively encourage sick employees to stay home

• Consider daily in-person or virtual health checks

  • Maintain social distancing

  • Conduct them safely with the appropriate PPE

  • Follow EEOC Guidance regarding health checks

  • Keep the screenings as private as possible

• Identify where and how workers may be exposed to identify workplace hazards

  • Issue PPE where administrative and operational controls are unable to offer complete protection

  • Encourage employees to wear cloth face coverings

  • Post CDC guidelines for employees and visitors

• Separate sick employees

• Take action if an employee is suspected or confirmed to have COVID-19

  • Unless it has been more than 7 days since the sick employee used the facility

  • Shut down the area(s) where the possible infection could occur

  • Wait 24 hours or as long as possible before cleaning and disinfecting and increase ventilation in the space during that time

  • Clean as required by the CDC guidelines

  • Determine which employees may have been exposed

  • Inform them of their possible exposure (but don't tell them who) and instruct them to remain home 14 days

  • Critical infrastructure workplaces should follow specific CDC recommendations issued for those workplaces

• Educate and remind employees about the CDC hygiene practices most workplaces already implemented, to include all of the reporting requirements

• Implement flexible sick and supporting leave policies

The FAQs provide answers by topic of Suspected or Confirmed Cases of COVID-19 in the workplace:

• Reducing the spread of COVID-19 in workplaces

• Healthy business operations

• Cleaning and disinfecting

• Special protections for employees from customers/visitors

As your business is returning to work or continuing operations, review the guidance provided from OSHA and the CDC highlighted in this post, along with the additional resources provided below.

If you have questions about this topic or other employment law matters, please contact Chris or the HSB Employment Law practice team.

Additional Resources:

DHEC Reopening Guidance

Workplace Protections
OSHA COVID-19 Guidance
CDC Interim Guidance for Businesses and Employers
CDC FAQ for General Business

Industry-Specific OSHA Guidelines
Healthcare Workers
Emergency Responders
Dentists
Manufacturing
Additional Industries

Other OSHA Guidance
Updated Blood Borne Pathogens
COVID-19 Reporting
Investigations
Good Faith Efforts
Right to Refuse Work
Workers’ Right to Refuse Dangerous Work

Disinfecting and Cleaning in the Event of an Outbreak

OSHA Enforcement Guidance on Respiratory Protections
March 14, 2020 - Annual Fit-Testing for N95 Filtering Facepieces
April 3, 2020 - Respiratory Protection and the N95 Shortage
April 3, 2020 - Use of Respiratory Protection Equipment Certified under Standards of Other Countries or Jurisdictions
April 8, 2020 - Fit-Testing for N95 Filtering Facepieces in All Industries
April 24, 2020 - Decontamination of Filtering Facepiece Respirators in Healthcare