Foley & Lardner LLPAs the discussion about reopening workplaces continues, employers are facing questions of how to deal with employees refusing to return, how to remain compliant with federal anti-discrimination laws, and how (or whether) to require employees to undergo temperature screening or even COVID-19 diagnostic testing.  While these latter efforts to screen out sick employees can play a role in keeping workplaces safe, employers still face the logistical challenges of ensuring employee safety for those on the job. 

In that regard, the Occupational Safety and Health Administration (OSHA) has not to date set forth mandatory coronavirus-specific rules for workplaces operating or reopening during the pandemic.  However, OSHA has recently issued guidance tailored to the construction, manufacturing, restaurant (takeout/pickup), and retail industries – as part of what the agency indicated will be a series of industry-specific alerts designed to keep workplaces safe.  In addition, OSHA and the U.S. Centers for Disease Control and Prevention (CDC) laid out detailed interim guidance for the meat and poultry packing industry, citing multiple recent outbreaks of COVID-19 at meat and poultry processing facilities. 

OSHA Industry-Specific Guidance 

OSHA’s industry-specific alerts share several recommendations that all employers should consider as they continue to operate as essential businesses or plan for a safe reopening: 

  • Encourage workers to stay home if they are sick. 
  • Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus. 
  • Encourage respiratory etiquette, including covering coughs and sneezes. 
  • Promote personal hygiene. If workers do not have immediate access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol.
  • Use Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus (check out the EPA’s guidance on these chemicals here). 
  • Encourage workers to report any safety and health concerns.

Beyond these common principles, OSHA provides helpful guidance accounting for the nature of employer operations in each area covered. 

For construction, OSHA also advises: 

  • Continue to use other normal control measures, including personal protective equipment (PPE), necessary to protect workers from other job hazards associated with construction activities. 
  • Advise workers to avoid physical contact with others and direct employees/contractors/visitors to increase personal space to at least six feet, where possible. 
  • Train workers how to properly put on, use/wear, and take off protective clothing and equipment. 
  • Where work trailers are used, all workers should maintain social distancing while inside the trailers. 
  • To the extent tools or equipment must be shared, provide and instruct workers in the use of alcohol-based wipes to clean tools before and after use. When cleaning tools and equipment, workers should consult manufacturer recommendations for proper cleaning techniques and restrictions. 
  • Keep in-person meetings (including toolbox talks and safety meetings) as short as possible, limit the number of workers in attendance, and use social distancing practices. 
  • Clean and disinfect portable jobsite toilets regularly. Hand sanitizer dispensers should be filled regularly. Frequently touched items (i.e., door pulls and toilet seats) should be disinfected. 

For manufacturing, OSHA also advises: 

  • Establish flexible work hours (e.g., staggered shifts), if feasible. 
  • Practice sensible social distancing and maintain six feet between co-workers, where possible.  
  • For work activities where social distancing is a challenge, consider limiting the duration of these activities and/or implementing innovative approaches, such as temporarily moving or repositioning workstations to create more distance or installing barriers (e.g., plexiglass shields) between workstations. 
  • Discourage workers from using other workers’ tools and equipment. 
  • Provide disinfectants and disposable towels workers can use to clean work surfaces. 

For restaurants’ curbside pickup and takeout operations, OSHA also advises: 

  • Avoid direct hand-off, when possible. 
  • Display a door or sidewalk sign with the services available (e.g., takeout, curbside), instructions for pickup, and hours of operation.
  • Reserve parking spaces near the front door for curbside pickup only. 
  • Train workers in proper hygiene practices and the use of workplace controls. 
  • Provide a place to wash hands and alcohol-based hand rubs containing at least 60% alcohol. 
  • Practice sensible social distancing by maintaining six feet between co-workers and customers. Mark six-foot distances with floor tape in pickup lines, encourage customers to pay ahead of time by phone or online, temporarily move workstations to create more distance, and install plexiglass partitions, if feasible. 

For retail (including pharmacies, supermarkets, and big box stores), OSHA also advises:

  • Practice sensible social distancing, maintaining six feet between co-workers and customers, where possible. For example, some worksites have already begun to demarcate six-foot distances with floor tape in checkout lines. Workplaces where social distancing is a challenge should consider innovative approaches, such as opening only every other cash register, temporarily moving workstations to create more distance, and installing plexiglass partitions.
  • Use a drive-through window or curbside pickup.
  • Provide workers and customers with tissues and trash receptacles. 

OSHA and CDC Joint Guidance for Meatpacking Industry

In addition to this basic industry guidance, OSHA and the CDC issued detailed guidance for meat and poultry processing employers in the wake of recent outbreaks of COVID-19 at meatpacking facilities.  The guidance recognizes that the environments in these facilities “may contribute substantially” to workers’ exposure risk—citing close distance between workers on processing lines, while clocking in/out, or in locker/changing rooms; prolonged duration of contact (e.g., 10-12 hour shifts); and exposure through either respiratory droplets or contact with contaminated surfaces like workstations, tools, or breakroom tables.  Notably, while the guidance is targeted at the meatpacking industry, employers with similar production-based operations may find the guidance useful as well.

The OSHA and CDC guidance recommends creating a COVID-19 assessment and control plan, and outlines the following key components for such a plan:

  • Designate a workplace coordinator responsible for identifying and implementing COVID-19 risk and prevention strategies.
  • Establish engineering controls (such as reconfiguration or modification of communal work areas and workstations/processing lines). The guidance provides illustrations of “good” and “bad” workstation/processing line setups.
  • Establish administrative controls (such as staggering shifts, adding additional shifts, providing visual cues regarding social distancing, encouraging workers to avoid carpooling, monitoring absenteeism, modifying sick leave policies as necessary to ensure ill workers are not in the workplace, cohorting workers on the same shift, establishing a system for employees to alert supervisors if they are experiencing COVID-19 symptoms or have been exposed to someone with COVID-19, and building in additional handwashing breaks).
  • Educate and train workers/supervisors about how they can reduce the spread of COVID-19.  The guidance provides links to the CDC’s free, simple posters for downloading and printing in multiple languages.
  • Clean and disinfect meat and poultry processing tools, including at least as often as workers change workstations or move to a new set of tools.  The guidance provides a link to the EPA’s list of registered disinfectants that have qualified as being effective against COVID-19.  
  • Establish protocols and provide supplies to increase sanitization in work and common areas, including bars and handles on doors, and any physical barriers used to separate workers. 
  • Screen and monitor workers, by establishing screening before entry, criteria for return to work of exposed/recovered workers, and criteria for exclusion of sick workers.  The guidance cites temperature or verbal symptom screening (along with reminders about PPE and other qualifications that may be necessary for those performing the screening).  The guidance also covers how to handle confirmed COVID-19 cases and reintegrate recovered workers consistent with CDC guidance.
  • Consider all PPE-related obligations, such as conducting hazard assessments, training on proper PPE, providing proper PPE (including, potentially, face shields), considering allowing voluntary use of filtering facepiece respirators (such as an N95) even if not normally required, and addressing PPE needed for any additional sanitization and cleaning protocols in place. 

As the COVID-19 pandemic is an ever-evolving situation, employers in all industries should continue to regularly monitor OSHA guidance on operating during the pandemic. 

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