Under OSHA’s General Duty Clause, employers have a duty to provide employees with a “place of employment … free from recognized hazards that are causing or are likely to cause death or serious physical harm … .” 29 U.S.C. § 654(a)(1). OSHA has also issued a number of coronavirus/COVID-19 guidance materials. “Prevent Worker Exposure to Coronavirus (COVID-19)” is a one-page alert in which OSHA suggests the following practices: (1) assess potential worker exposure hazards, (2) evaluate exposure risk, and (3) select, implement, and ensure the use of controls (i.e., appropriate personal protective equipment, hygiene, and cleaning supplies). These practices help an employer satisfy its general duty to provide a safe workplace.
In its “Guidance on Preparing Workplaces for COVID-19,” OSHA outlines six basic steps employers can take to reduce worker exposure risk:
- Develop an Infectious Disease Preparedness and Response Plan
- Prepare to Implement Basic Infection Prevention Measures
- Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate
- Develop, Implement, and Communicate about Workplace Flexibilities and Protections
- Implement Workplace Controls
- Follow Existing OSHA Standards
Notably, step three is to “Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate.” On its COVID-19 Hazard Recognition page, OSHA states: “Depending on the work setting, employers may also rely on identification of sick individuals who have signs, symptoms, and/or a history of travel to COVID-19-affected areas … in order to help identify exposure risks for workers and implement appropriate control measures.” (emphasis added). In addition, on its Control and Prevention page, OSHA’s general guidance for all U.S. workers and employees is to “[a]void close contact with people who are sick.” This guidance supports a policy of identifying ill guests to protect employees.
The Guidance suggests specific recommendations and controls for each level of worker exposure risk. The four levels of risk are classified as very high, high, medium, and lower. Very high and high exposure risk jobs include those in the healthcare and laboratory fields. Medium exposure risk jobs include those requiring “frequent and/or close contact” with the general public, such as those in the education and retail/restaurant fields. OSHA classifies “[w]orkers with high-frequency interaction with the general public (e.g., those working in … restaurants …)” to have “medium” exposure risk. (emphasis added). [See OSHA Fact Sheet 3747, “Protecting Workers during a Pandemic.”] For medium exposure risk jobs, an example of an administrative control is “[k]eep[ing] customers informed about symptoms of COVID-19 and ask[ing] sick customers to minimize contact with workers until healthy again ….” Here, OSHA specifically suggests employers “ask sick customers to minimize contact” with their employees.
Finally, in “Protecting Workers during a Pandemic,” OSHA states “[e]mployers may modify the work environment and/or change work practices to provide additional protection to workers and clients.” Employers may “conduct business in a different manner (e.g., use drive-through service windows, curbside service, or delivery)….” Although not every restaurant has a drive-through, many can offer curbside service or delivery, and each has discretion on how to change work practices/conduct business during a pandemic in order to protect its employees and customers.