Employers creating return to work plans should consider OSHA’s newly-released Guidance on Returning to Work.

Last week, the Occupational Safety and Health Administration (OSHA) released Guidance on Returning to Work to assist employers and workers in safely returning to work and reopening non-essential businesses during the COVID-19 pandemic. Public employers are not covered by the Occupational Safety and Health Act (and this document is only guidance, not law); however, the Guidance is thorough, helpful, and courts or other adjudicating bodies would likely look to the standards described in the Guidance when determining whether proper precautions were taken in the workplace.
The Guidance is intended to supplement OSHA’s previous publication Guidance on Preparing Workplaces for COVID-19. When developing a plan for returning to work, employers in Texas should also review Governor Abbott’s Open Texas Plan and any Checklists related to their business, as well as any local orders issued by relevant City or County leaders.
While covered employers (remember, public employers are not covered, but should consider referring to the guidance for best practices) are always responsible for complying with all applicable OSHA requirements, the agency’s standards for PPE (29 CFR 1910.132), respiratory protection (29 CFR 1910.134), and sanitation (29 CFR 1910.141) may be especially relevant for preventing the spread of COVID-19. Where there is no OSHA standard specific to COVID-19, covered employers have the responsibility to provide a safe and healthful workplace that is free from serious recognized hazards under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970.

The Guidance contemplated three phases of reopening:

Phase 1:
Telework when possible and implement safety precautions for those who must be in the office, including PPE and social distancing, consider accommodations for high risk workers, and limit all non-essential business travel.

Phase 2:          
Telework when possible, non-essential business travel resumes, limitations on number of people in workplace eased, but social distancing continues, continue to consider accommodations for high risk workers.

Phase 3:          
Businesses resume unrestricted staffing of work sites.

Using these three phases as guides, the Guidelines list a number of Guiding Principles (such as hazard assessment, hygiene, workplace controls, and training) and provide example action items on how to implement the principles. We strongly recommend employers review these principles and examples with an eye towards implementing those that apply to their workplace.
Beginning on page 11 of the Guidance are Frequently Asked Questions addressing many questions that Lloyd Gosselink’s Employment Practices Group is receiving from clients. The FAQs provide detailed information on health screening, temperature checking, PPE, and handling employees who test positive for COVID-19. We strongly recommend that any employers (public or private) preparing a return to work plan review this Guidance and the other documents linked at the beginning of this Alert.
If you have any questions about OSHA’s Guidance document or creating a return to work plan, contact Sheila Gladstone at 512.970.5815 or sgladstone@lglawfirm.com, Sarah Glaser at 512.221.6585 or sglaser@lglawfirm.com, or Emily Linn at 214.755.9433 or elinn@lglawfirm.com.

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