Updated Guidance on Return to Work from OSHA and EEOC

Orrick - Global Employment Law Group

As much of the US re-opens, governmental agencies are issuing updated guidance to guide the return to the workplace.  Here’s the latest from OSHA and the EEOC.

First, because masks will likely be an essential piece of almost any workplace’s reopening (see California’s guidance mandating masks in public places here), it is important to understand the options available and their efficacy.  OSHA has recently released a set of FAQs to help employers understand the differences between face covering types and what may be required in the workplace.

The most common type of face covering is known as a cloth face covering.  These can be improvised from scarfs, bandanas, t-shirts and other types of fabric. OSHA has emphasized that cloth face coverings are not considered personal protective equipment (“PPE”) and are not appropriate for employees in workplaces that previously required more substantial face coverings. For example, cloth face coverings are not an acceptable substitute for a construction site that previously required N95 respirators or a hospital that required surgical masks. Employers subject to respiratory or mask requirements pre-pandemic, continue to be subject to the same rules and guidance.

For all other employers, though, where the use of masks in the workplace is new, the OSHA FAQs explain that although employers should encourage their employees to wear cloth face coverings in the workplace, employers are not required to provide these face coverings to employees.  In determining whether to use or require cloth face coverings in the workplace, employers should consider:

  • Whether cloth face coverings in the workplace would actually exacerbate a potential workplace hazard (e.g. the cloth face covering would collect hazardous chemicals used by an employee and cause them to inhale the chemicals);
  • Whether the employee’s specific circumstances and work environment is suitable for wearing a cloth face covering (e.g. the employee works outdoors and cloth face covering may exacerbate the risk of heat illness).

In these circumstances, OSHA advises employers to encourage employees to use alternatives such as face shields and/or light weight surgical masks.

Second, the EEOC also recently released new guidance regarding the use of antibody testing as a return to workplaces tool.  In this much anticipated guidance, the EEOC clarified that employers may not require antibody tests as a condition of an employee’s return to the workplace.  The EEOC primarily relies upon the CDC’s guidance that antibody test results should not be used in making decisions about return to workplaces to find that an antibody test is not job related or consistent with business necessity.  Thus, unlike a COVID-19 test or temperature checking, antibody tests are not exempted from the general prohibition against medical examinations in the workplace.  The EEOC also notes that its guidance on the subject may change should the CDC’s guidance change.

Employers should continue to consult EEOC, CDC, and OSHA’s guidance (which is frequently changing)—along with other federal, state, and local guidance—as they plan to return to their workplaces.

We are continuing to monitor the myriad developments in return to work and workplace safety. Please stay tuned for updates.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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