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May 26, 2020

COVID-19 UPDATE: State and Federal Work Place Safety and Return To Work Guidance

We continue our efforts to keep you informed of key legal developments relating to COVID-19. Today, we are providing updates on new work place safety guidance issued by both the State and OSHA.


Illinois Department of Commerce and Economic Opportunity Guidelines

As all of Illinois approaches Phase III of the State’s reopening plan, the Illinois Department of Commerce and Economic Opportunity (“DCEO”) has issued specific guidelines for ten distinct industries (see HERE). Guidelines have been issued for:

  • Manufacturing
  • Offices
  • Health and Fitness Centers
  • Personal Care Services
  • Retail
  • Outdoor Recreation
  • Service Counters
  • Day Camps
  • Youth Sports
  • Restaurants and Bars (Outdoor Dining and Drinking)

Guidelines for each industry consist of a PowerPoint highlighting best practices in areas of work place safety relevant to the industry. The DCEO also has prepared “toolkits” for each industry. These toolkits provide educational resources such as work place signage and safety checklists. If the guidelines present any questions about your reopening plans, please don’t hesitate to reach out to us.

OSHA Guidance

In last week’s update (see HERE), we highlighted that OSHA has been receiving a large number of complaints related to COVID-19. As businesses begin to consider and prepare plans to reopen, it is important to take steps to ensure worker safety and minimize potential employer liability. While there had been a general lack of detailed protocols from federal authorities in prior weeks and months, new guidance was recently released by several key federal and state agencies, which provide information on best practices for business reopening plans. These include:

  • OSHA’s “Guidance on Preparing Workplaces for COVID-19.” (See HERE);
  • The CDC’s “Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening America Up Again.” (See HERE);
  • The CDC’s “Guidance for Businesses & Employers,” which includes “updated strategies and recommendations for employers responding to COVID-19, including those seeking to resume normal or phased business.” (See HERE);
  • A CDC-issued two-page handout on how to “Prepare your Small Business and Employees for the Effects of COVID-19,” which also includes the “Top 10 Tips to Protect Employees’ Health.” (See HERE); and
  • The Illinois Department of Public Health’s “Recommended strategies for employers to use now.” (See HERE).

Each of these recently-issued resources provide information to consider while planning a safe reopening of business. Below we highlight several provisions from the OSHA publication, given OSHA’s already significant investigation activities.

Foremost, OSHA lists the following “Steps All Employers Can Take to Reduce Workers’ Risk of Exposure to COVID-19.”

  • Develop an Infectious Disease Preparedness and Response Plan, which considers where, how and to what sources of the virus workers might be exposed, including non-occupational risk factors at home and in community settings, workers’ individual risk factors, and controls necessary to address those risks. As part of this, OSHA recommends that employers follow federal and state recommendations regarding contingency plan development for viral outbreak situations which consider: increased rates of absenteeism; the need for social distancing, staged work shifts, downsizing operations, delivering services remotely, and other exposure reducing measures; options for conducting essential operations with a reduced workforce; and interrupted supply chains or delayed deliveries.
  • Prepare to Implement Basic Infection Prevention Measures. OSHA encourages employers to implement good hygiene practices, including frequent and thorough handwashing, encouraging workers to stay home if they are sick, encouraging respiratory etiquette (covering coughs and sneezes), providing customers and the public with tissues and trash receptacles, exploration of new policies and procedures (such as flexible worksites, telecommuting, and staggered shifts) to increase physical distancing, discouraging shared use of supplies, tools or equipment, and the maintenance of regular housekeeping practices.
  • Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate. This includes training employees on identification, isolation and reporting of symptoms. In addition to isolating potentially sick individuals, OSHA recommends that employers provide face masks, restrict the number of personnel entering isolation areas, and protect workers in close contact with a sick person (by using additional engineering and administrative controls, safe work practices, and PPE).
  • Develop, Implement, and Communicate about Workplace Flexibilities and Protections. This includes actively encouraging sick employees to stay home, and ensuring that sick leave policies are flexible, consistent with public health guidance and that employees are aware of them. OSHA recommends communicating these requirements with companies that provide temporary employees, not requiring a healthcare provider note for employees who are sick with respiratory illness (to validate the illness or to return to work), maintaining flexible policies allowing employees to stay home for sick family members, and to be aware of workers’ concerns about pay, leave, safety, health and other issues. OSHA stresses the importance of appropriate training, education and informational material on business-essential job functions, worker health and safety, proper hygiene practices, and the use of workplace controls (including PPE).
  • Implement Workplace Controls, which can include:
    • Engineering Controls which isolate employees from work-related hazards. Examples given include high-efficiency air filters, increasing ventilation, installing physical barriers (such as clear sneeze guards), installing a drive-through window for customer service, or negative pressure ventilation in some settings.
    • Administrative Controls (defined primarily as changes in work policies or procedures). These may include encouraging sick workers to stay home, minimizing contact by replacing face-to-face meetings with virtual ones, establishing alternating shifts or extra shifts to reduce employees in the facility at one time, discontinuing nonessential travel to locations with viral outbreaks, developing emergency communication plans, providing up-to-date education and training on COVID risk factors and PPE, and training on use of protective clothing and equipment.
    • Safe Work Practices to reduce the duration, frequency and intensity of exposure. This largely includes proper hygiene.
    • Personal Protective Equipment. OSHA states that while PPE should not be used in lieu of other prevention strategies, it may be needed to prevent certain exposures and can include gloves, goggles, face shields, face masks and respiratory protection. OSHA’s website includes updates on recommended PPE, but all types must be selected based upon the hazard to the worker, properly fitted, periodically retrofitted, consistently and properly worn, and regularly inspected, maintained, replaced, cleaned, stored and disposed of to avoid contamination. Employers are obligated by OSHA standards and regulations to provide PPE to keep employees safe while performing their work and additional specifics are included in the provided link.
    • Follow Existing OSHA Standards. Notably, while OSHA acknowledges that it does not have a specific standard relating to COVID-19, it expressly notes that other existing standards may apply, including, most notably:
      • OSHA’s PPE standard in general industry, 29 CFR 1910 Subpart I, which requires using gloves, eye and face protection, and respiratory protection.
      • The General Duty Clause, Section 5(a)(1) of the OSH Act of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
      • OSHA’s Bloodborne Pathogens standard, 29 CFR 1910.1030, which applies to potentially infectious materials that typically do not include respiratory secretions. However, OSHA notes that the provisions of that standard offer a useful framework that may help control some sources of the COVID virus.

It should be noted that this recent OSHA guidance also includes significant discussion on how employers can classify the level of risk to its employees based on that employer’s work activities, which will then inform steps that can and should be taken to protect employees. The level of risk depends in part on the industry type, the need for contact within six feet of people known or suspected of being infected, the requirement for repeated contact, and other factors. The risk levels are broken into four groups: Very High Exposure Risk; High Exposure; Medium Exposure Risk; and Lower Exposure Risk, with most workers likely to fall in the lower-to-medium range.

OSHA encourages businesses to determine the level of risk to its employees under this guidance and review the recommended steps for its determined level when considering and preparing exposure control plans.

We will continue to keep you updated on further developments. However, do not hesitate to contact us if you have questions about any of this information, concerns about liability or compliance issues, or need assistance regarding employment matters or OSHA investigations.

If you have a particular issue that you’d like us to address or if you’d like to be removed from the distribution list, please let us know.

Feel free to contact us with any questions.

Gery Chico, Jon Leach and Alpita Shah

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