US | COVID-19 | OSHA Publishes Guidance on Returning to Work

On June 17, 2020 the Occupational Safety and Health Administration (OSHA) published guidance to help employers and workers return to work and reopen businesses. The OSHA guide also contains answers to frequently asked questions regarding testing and other issues related to safely reopening.

This guidance is intended to be used in conjunction with the following:

Reopening workplaces should align with state, local, tribal, and/or territorial (SLTT) governments and recommendations from the Centers for Disease Control and Prevention. All employers should monitor SLTT health department communications to understand how their communities are progressing through the reopening phases.

Employers should continue to consider ways to utilize workplace flexibilities, such as remote work and alternative business operations, to provide goods and services to customers. Throughout the reopening phases, employers should implement basic hygiene strategies, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training.

Reopening Phases

The business reopening guide has three phases. Throughout each phase, employers should continue to monitor the emergence or resurgence of COVID-19 in the workplace and community.

  • Phase 1
    Businesses should consider making telework available when feasible. They should also consider limiting the number of employees who return to the workplace to maintain strict social distancing practices. Accommodations should be made for workers at higher risk of severe illness. Employers should also consider accommodations for workers who have household members at higher risk of severe illness. Non-essential business travel should be limited.
  • Phase 2
    Businesses should continue to offer telework where possible, but non-essential business travel can resume. Limitations on the number of people in the workplace can be eased. Continue to maintain moderate-to-strict social distancing practices, depending on the type of business. Continue to accommodate employees at higher risk, as in Phase 1.
  • Phase 3
    Businesses can resume unrestricted staffing of work sites.

Testing and Screening

OSHA states that employers may conduct worksite testing, including temperature checks, COVID-19 testing, and other health screenings, if such testing is applied in a transparent manner applicable to all employees.

Due to the current testing capabilities, employers should be cautious when evaluating negative test results, and continue to maintain all appropriate health and safety measures. Employers should not presume that an employee who tests negative does not present a hazard to others.

Confidentiality must be maintained for any screening as required under the Americans with Disabilities Act. Employers should be aware that screening only plays a part in a reopening plan because asymptomatic and pre-symptomatic workers may still spread the virus.

If an employer implements health screening or temperature checks and creates records of this information, the records may be considered medical records subject to the Access to Employee Exposure and Medical Records standard, 29 CFR 1910.1020. Employers would then be required to retain these records for the duration of each worker’s employment plus 30 years and follow confidentiality requirements.

Instead, employers may choose to acknowledge the readings in real time without creating a record. According to OSHA, temperature records do not qualify as medical records under the standard unless they are made or maintained by a physician, nurse, technician, or other health care professional.

Finally, the Equal Employment Opportunity Commission (EEOC) has released guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. This FAQ contains information on how to ensure health screening and medical issues associated with COVID-19 comply with other labor, disability, and employment laws.

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Sources:

OSHA, Guidance on Returning to Work, June 17, 2020

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