Eric Conn, founding partner at law firm Conn Maciel Carey LLP and chair of its OSHA workplace safety group, says employers should be aware that OSHA has not released standards specific to workplace safety and COVID-19. However, the agency is using the general duty clause as an enforcement tool.
Here are Conn’s top three reasons every employer should have a single COVID exposure control/response plan in writing:
- Your employees are scared. Having a written plan gives them comfort and abates the incredible amount of angst right now. It demonstrates to your team that you’ve taken your response seriously and put a lot of thought into it.
- It helps in your dealings with OSHA. By having a documented plan, it shows the agency the steps you have taken, and it can help defend actions you’ve taken.
- We are on the verge of seeing a tidal wave of litigation. Conn expects more wrongful death, personal injury suits, and more litigation about employee’s and their family members becoming sick. Having a good, effective and coherent action plant will by your outline for a defense.
“Having a written exposure plan, it’s just like lock out/tag out or an emergency action plan,” he says.
Conn shared his insights into the OSHA guidance and workplace health and safety issues during a webinar hosted by the National Grain and Feed Association and Grain Journal. He says the developing regulations around workplace health and safety issues and COVID-19 has been akin to “building the car while driving down the highway.”
Specific to COVID-19, Conn says the OSHA guidelines borrow a lot of language from the CDC guidelines, but they are specific to workplaces.
He says there are four elements to OSHA proving there has been a violation:
- Hazard exists in the workplace
- Employers or its industry “recognizes” the hazard
- Hazard is likely to cause death or serious injury; and
- Feasible means exist to eliminate/reduce the hazard
In light of those four parameters, Conn suggests the following eight details be part of your written COVID response plan.
- Personal protection equipment hazard assessment. This details when employees are to use gloves, gowns, respirators, masks.
- Signage and communication for employees and guests. These should outline expectations for on-site behaviors including hygiene practices.
- ID and require sick employees/guests to stay out of the workplace. Another detail to include are the protocols for when they can return.
- Implement staggered and rotating shifts. As feasible, the workplace should maintain social distancing.
- Document how and where you supply tools for hygiene. Note how you provide an adequate supply of alcohol-based hand sanitizer, cleaning supplies, and hand soap.
- Enhance the workplace housekeeping program. Detail the sanitization process and include often touched surfaces and equipment that is used often.
- Discourage use of common tools, offices, or equipment when possible. This includes sharing phones, desks, closed office spaces, tools and equipment.
- Implement engineering and administrative controls. For engineering controls this includes air filtration, installing physical barriers, etc. Administrative controls include stay-home requirements for sick workers, virtual workers, telework, staggered shifts, etc.
The COVID-19 pandemic has employers considering measures that were previously prohibited.
“Most of the activity of health screenings would be prohibited by previous labor laws, but because of the global pandemic, employees who may be carriers are a direct threat to the workplace,” he says. “So under the duration of the pandemic, they can engage in dialogue and procedures that were previously prohibited.”
As many businesses begin to implement practices such as temperature checks, Conn has a very practical piece of advice.
“The safest way to do employee temperature checks is buy an oral thermometer for every employee and have them take their temperature themselves at home before they report to work,” he says.
As a general description, 100.4 is the CDC identified benchmark temp.
“But if you have one employee check temperatures on site, a great idea is to set up a station in the parking lot and provide adequate protection to that employee,” he adds. “As employees arrive, they can crack their window a couple of inches and the administrator of the temperature check can use a non-contact thermometer and ask questions about symptoms.”
He does caution employers from one perhaps unforeseen complication–creating an official medical record.
“Don’t write an employees name with their temperature reading,” Conn says. “If anything, just make a mark if they can continue to the office or they can not enter. But do not record specific temperatures.”
As for requirements for on-site face coverings, he says employers are permitted to state such requirements. And if you can’t ensure social distancing in the workplace, you should require face coverings. He shares the CDC’s five criteria for a cloth face covering:
- Fit snugly but comfortably against side of the face
- Be secured with ties or ear loops
- Include multiple layers of fabric
- Allows or breathing without restriction
- Be able to be laundered and machine dried without damage