The guidance makes clear that it does not contain any new standards; nor does it create any new legal obligations.
On June 18, OSHA released new guidance to assist employers reopening non-essential businesses and their employees returning to work during the COVID-19 pandemic. The new guidance supplements the Departments of Labor and Health and Human Services’ previously developed Guidance on Preparing Workplaces for COVID-19 and the White House’s Guidelines for Opening up America Again.
No new standards. This guidance states that it “is not a standard or regulation, and it creates no new legal obligations,” but rather “contains recommendations as well as descriptions of mandatory safety and health standards.” The guidance also clarifies that its recommendations “are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.”
Infection prevention and hygiene. The guidance is based on the application of traditional infection prevention and industrial hygiene practices to a phased approach for reopening, as described in the White House guidelines. It focuses on the need for employers to develop and implement strategies for basic hygiene (e.g., hand hygiene, cleaning, and disinfection), social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training.
The guidance also outlines anti-retaliation measures to help protect employees who adhere to the guidelines or raise workplace safety and health concerns.
Sync with stay-at-home orders, CDC guidelines. Non-essential businesses should reopen as state and local governments lift stay-at-home or shelter-in-place orders and follow public health recommendations from the Centers for Disease Control and Prevention and other federal requirements or guidelines, according to the guidance.
Consider workplace flexibilities. Employers should also continue to consider ways to use workplace flexibilities, such as remote work and alternative business operations, to provide goods and services to customers.
COVID-19 screening. OSHA’s new guidance also includes several employer frequently asked questions. While the guidance makes clear that employers may conduct SARS-COV-2 testing for the virus, OSHA stresses that “because of the limitations of current testing capabilities, employers should act cautiously on negative SARS-CoV-2 test results. Employers should not presume that individuals who test negative for SARS-CoV-2 infection (i.e., the virus that causes COVID-19) present no hazard to others in the workplace.”
As for temperature checking, OSHA notes that such a screening program to monitor worker health during the pandemic may have limited utility on its own because asymptomatic individuals may spread the virus. “In many workplaces, temperature screening efforts are likely to be most beneficial when conducted at home by individual workers, with employers’ temperature screening plans relying on workers’ self-monitoring and staying home if they have a fever or other signs or symptoms of illness, rather than employers directly measuring temperatures after workers arrive at the work site,” OSHA pointed out.
One of the frequently asked questions addresses OSHA requirements that employers must follow when conducting health screening, temperature checking, or COVID-19 testing.
Keeping records. Here the federal health and safety agency says that where an employer implements health screening or temperature checks and decides to create records of this information, those records might qualify as medical records under the Access to Employee Exposure and Medical Records standard (29 CFR 1910.1020). If so, the employer must retain these records for the duration of each worker’s employment plus 30 years and follow confidentiality requirements.
However, temperature records do not qualify as medical records under the Access to Employee Exposure and Medical Records standard unless they are made or maintained by a physician, nurse, or other health care personnel or technician.
Notably, employers need not make a record of temperatures when they screen workers but instead may just acknowledge the temperature reading in real-time.
Tester protections. OSHA also reminded employers that personnel administering COVID-19 tests, in-person temperature checks, or other in-person health screening, must be protected from exposure to sources of COVID-19, including asymptomatic and pre-symptomatic workers who might be infected but don’t know it. Protection of screening and testing workers should incorporate standard and appropriate transmission-based precautions and follow the hierarchy of controls, including appropriate engineering and administrative controls, safe work practices, and personal protective equipment.
While diagnostic testing that involves saliva or nasal or oral cavity swabbing would not typically fall under the scope of the Bloodborne Pathogens standard (29 CFR 1910.1030), any testing that involves drawing blood would be subject to that standard.
However, OSHA cautions that “Regardless of whether or how employers ultimately decide to implement temperature checks or other health screening measures, they should act cautiously on results. Employers should not presume that individuals who do not have a fever or report experiencing other symptoms of COVID-19 do not have SARS-CoV-2, the virus that causes COVID-19.”
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