Loren Kean Law

Loren Kean Law

Loren Kean Law






OSHA GUIDANCE ON RE-OPENING BUSINESSES AFTER COVID-19 Bruce E. Loren, Kyle W. Ohlenschlaeger and Brandon J. Camilleri | Jun 30 2020

OSHA recently issued guidance to assist employers to safely reopen their businesses. The guidance supplements previous guidelines, including those provided by the U.S. Department of Labor.

Why is the guidance important?

OSHA is tasked with enforcing workplace safety and health standards in all 50 states. Failure to adhere to OSHA standards can result in a citation, which may result in fines, criminal charges, and stricter safety requirements. Even if standards have not been set by OSHA as to a particular safety issue, OSHA can regulate hazards under the General Duty Clause (allowing OSHA to impose sanctions for any hazard which may cause death or serious harm).

What does the new guidance say?

The guidance provides the following recommendations for employers:

  • i.Perform a hazard assessment: assess all job tasks to determine the likelihood of COVID-19 exposure.
  • ii.Continue to use workplace alternatives: when possible, allow employees to telework and curbside pickup for customers.
  • iii.Implement basic hygienic strategies: provide soap and sanitizer (with 60% alcohol or higher) to customers and employees, encourage 20 seconds of handwashing, and identify high traffic areas for increased cleaning.
  • iv.Continue social distancing: limit business occupancy, mark six-feet zones, post signs asking people to maintain six feet apart, and post directional signs in corridors to restrict movement.
  • v.Identify and isolate sick employees: ask employees to evaluate themselves for COVID-19 signs before coming to work, establish policies for sick employees (and how to isolate them if they cannot leave immediately), and disinfect spaces of any sick employees.
  • vi.Ask sick or exposed employees to follow CDC guidance before returning: require exposed employees to monitor themselves for illness and sick employees to wait at least 10 days after symptoms first appear and 3 days after resolution of symptoms to return to work.
  • vii.Implement physical and administrative controls where possible: provide physical barriers, increase ventilation, limit breakroom capacity, replace in-person meetings with video-conferencing, and provide PPE gear when identified as beneficial under a hazard assessment.
  • viii.Training: train employees on signs and risk factors of COVID-19, to wear cloth coverings in the workplace (and when coverings may cause a hazard), and to properly use and clean or dispose of PPE.
  • ix.Anti-retaliation: ensure no adverse action is taken against an employee for adhering to guidelines or raising workplace safety issues.

The guidance also provides phase-specific recommendations for employers:

  • Phase 1: consider telework, limit people in the workplace, and accommodate employees that are susceptible to COVID-19 or have family members susceptible to COVID-19;
  • Phase 2: allow telework where possible, maintain moderate to strict social distancing requirements, and continue to accommodate susceptible workers;
  • Phase 3: resume unrestricted staffing of work sites.

How can employers protect themselves?

Implement OSHA guidance into your company’s written policies. Written policies are extremely useful in fighting citations. When an issue with workplace safety comes up, you want to be able to point to a policy evidencing the company’s position.

Evaluate decisions from a true cost perspective. Investing money to protect your employees now could save you money later. Sick employees can scare other employees, drive off potential customers, and even result in a lawsuit.

Create a record of your enforcement of the new safety policies. Keep a log of all safety measures to include, at a minimum: (1) safety equipment, i.e. masks, provided to employees for their use – note each time a new mask is provided; (2) regular scheduled clearing/disinfecting – keep a log of cleaning all surfaces, doors, bathrooms, breakrooms; (3) regular checks of hand sanitizer – is it full, when did you last fill it; (4) discovery of sick employees – how did you isolate them, when did you send them home, when did they report that symptoms ceased, when did you allow them back to work; and (5) what training did you give and who attended – attendance sheet, outline of training discussion given.

Develop anti-retaliation policies. Create written policies outlining reporting procedures, including who employees can report health or safety violations to and consequences for not following safety policies. Train managers not to retaliate against employees that raise health or safety concerns.

We are here to help on any of these matters.

Bruce E. Loren, Kyle W. Ohlenschlaeger and Brandon J. Camilleri of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, employment law, and complex commercial litigation. Mr. Loren has been certified in construction law by the Florida Bar since 2004, exemplifying the Bar’s recognition of his expertise. Mr. Loren, Mr. Ohlenschlaeger and Mr. Camilleri can be reached at: bloren@lorenkeanlaw.com, kohlenschlaeger@lorenkeanlaw.com, and bcamilleri@lorenkeanlaw.com or 561-615-5701.