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How Should Employers Protect Their Employees From COVID-19?

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Employers may wonder: "What steps should I take to protect my employees from COVID-19? Must I provide gloves? What about face masks?" Employees may similarly wonder if their employers are taking proper precautions. The Occupational Safety and Health Administration ("OSHA") recently issued guidance to help answer these questions.

First, OSHA outlined 4 types of "controls" that employers may be required to implement, depending on the nature of the job:

  1. Engineering Controls: Reduce exposure to hazards without reliance on worker behavior (e.g, high-efficiency air filters; plastic sneeze guards)
  2. Administrative Controls: Change work policies to reduce exposure to a hazard (e.g., encourage sick employees to stay home; implement telework policies)
  3. Safe Work Practices: Types of administrative controls that reduce the duration, frequency, or intensity of exposure to a hazard (e.g., encourage effective office hygiene)
  4. Personal Protective Equipment ("PPE"): Examples include gloves, goggles, face shields, face masks, gowns, and respirators.

Second, OSHA identified 4 "risk exposure levels" into which employees might fall:

  1. Very High: High potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures (e.g., healthcare workers or morgue workers performing specific procedures on people known or suspected to have COVID-19).
  2. High: High potential for exposure to known or suspected sources of COVID-19 (e.g., healthcare workers or mortuary workers exposed to known or suspected COVID-19 cases).
    • OSHA recommends that the same controls be instituted for high-risk employees as very high-risk employees.
  3. Medium: Frequent and/or close contact with people who are not known or suspected COVID-19 patients, but who may be infected nonetheless (e.g, grocery store workers).
    • OSHA recommended that physical barriers, such as sneeze guards, be installed in order to protect medium-risk employees, where feasible.
    • Employers may consider offering face masks to sick employees until they are able to leave the workplace. In the event of a mask shortage, reusable face shields that can be decontaminated may be acceptable.
    • PPE for medium-risk workers will vary from job to job. Employers should consider factors such as function, fit, cost, disposal, and decontamination ability.
    • Employers should limit the public's access to medium-risk employees' worksites as much as possible. They should also consider strategies to minimize face-to-face contact (e.g., drive through windows).
  4. Low: No frequent and/or close contact with the general public or people known or suspected of being infected with COVID-19 (e.g., certain office workers).
    • OSHA does not recommend that additional engineering or control be administered for low-risk employees.
    • Employers should continue to monitor updates about COVID-19 and work with employees to ensure they have access to important public health information. OSHA recommends frequent check-ins to the CDC website.

The determination of which category a worker falls into may require a fact-intensive analysis, and employers should consult an attorney if they are unclear as to what precautions are necessary. OSHA has provided some more explicit guidelines for certain industries, such as Retail, Package Delivery, Construction, and Manufacturing.

Finally, OSHA has decided to relax its recording requirements during the pandemic. Ordinarily, certain employers are required to record work related illnesses and injuries. However, given the difficulty of determining whether an employee contracted COVID-19 due to exposure at work, OSHA will not require employers to report COVID-19 cases, unless:

  • There is objective evidence that the COVID-19 case may be work-related (e.g., multiple employees in close proximity develop COVID-19 infections); and
  • The evidence was reasonably available to the employer

Recording requirements will not be lifted for employers in the healthcare industry, emergency response organizations (such as EMS/EMTs), and correctional institutions, given the greater risk of work-related transmission of the virus.

If you have any questions related to COVID-19, or any other aspect of employment law, contact Thatcher Law Firm at 301-441-1400. www.ThatcherLaw.com. Email me at [email protected].

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