By Andrea P. Sumits
On May 14, 2020, Cal/OSHA released updated Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease (COVID-19). Cal/OSHA has been relatively quiet until now. The agency posted an early version of Interim Guidelines on March 4, which included a very limited set of infection prevention measures and a recommendation to follow CDC guidelines, including the recommendation to create an infectious disease outbreak response plan.
The newly updated Cal/OSHA Interim Guidelines provide an expanded list of specific prevention measures for incorporation into your IIPP, and affirmatively states: “For most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community.” This makes it clear that Cal/OSHA expects employers to update their IIPP with listed COVID-19 infection prevention measures and to provide additional employee training. In addition, the updated Interim Guidelines reiterate that an employer must provide adequate washing facilities, have suitable cleansing agents and supplies, and provide any necessary Personal Protective Equipment (PPE) for employees.
Certain measures now recommended by Cal/OSHA vary in nuanced ways from CDC Guidelines. Employers would be well-served to carefully construct the updates to their IIPPs and other COVID-19 planning documents in a manner that will satisfy both CDC and Cal/OSHA Guidelines.
urves are starting to show signs of flattening. Businesses are catching their breath from the frenzy of determining whether they are “essential businesses” or “critical infrastructure” and securing compliance extensions and variances. Now businesses face the daunting challenge of planning how to scale up operations to what will be a new normal, at least for the next year or longer until wide-scale testing and a vaccine are available.
In these dynamic times, with nascent and evolving agency guidelines emerging, businesses that start planning now will be ready to engage when workplaces re-open. Thoughtful consideration must be given to planning all aspects of COVID-19 management in the workplace for businesses to keep their workplaces safe, their workforce healthy, and avoid further disruption to their business.
OSHA, Cal/OSHA, CDC, and WHO have all weighed in with guidance for employers, with several common themes emerging from these agencies. First, if your company does not yet have an infectious disease preparedness and response plan, now is the time to create one. Second, key features of planning include assessment of exposure risks, implementation of infection prevention measures, case management and response protocols, communication and training, and recordkeeping.
Assessment of Risk
OSHA has issued guidance for classifying worker exposure risk into four levels of risk based on job tasks. [Guidance on Preparing Workplaces for COVID-19, OSHA Publication 3990-03 2020]. Very high and high exposure risk levels are generally applied to healthcare workers and support staff, lab personnel, medical transport workers, and morgue and mortuary workers. Medium exposure risk jobs are those that require frequent or close contact with others, frequent contact with travelers, and/or contact with the general public, such as educational environments, high-density work environments, and some high-volume retail settings. OSHA’s guidance indicates that the majority of workers in the U.S. will fall into the low (and medium) risk category, where workers typically have minimal occupational contact with the general public and other coworkers. (OSHA 2020).
Few specifics have emerged from the agencies regarding how to assess exposure risks, other than the four broad risk classification levels laid out by OSHA. Cal/OSHA’s guidance mentions employers’ obligation to determine whether COVID-19 is a hazard in their workplace as a part of an Injury & Illness Prevention Program (“IIPP”) under 8 CCR § 3203, but does not offer any details on criteria to be used in making that determination. Based on guidance from other agencies, factors that may be considered in assessing risk include the degree that COVID-19 has spread in the local community, and the degree to which physical distancing is feasible between workers.
The OSHA guidance identifies control measures that should be considered for each risk classification level, as well as a set of measures that all employers can take to reduce exposure risks. These measures include:
Hand-washing and/or alcohol-based hand rubs
Encouraging workers to stay home if they are sick
Encouraging respiratory etiquette (covering coughs and sneezes)
Providing tissues and trash receptacles
Flexible worksites and work hours to increase physical distancing (depending on state and local health authority recommendations)
Discouraging workers from sharing phones, desks, offices, or other work tools and equipment
Routine cleaning and disinfecting of surfaces, equipment and other elements of workplace environment, using EPA-approved disinfectants
Aside from the measures all employers can take, OSHA specifies additional control measures for each risk-level. These control measures fall into three categories: engineering controls, administrative controls, and personal protective equipment (“PPE”). Engineering controls include air filtration and ventilation rates, physical barriers, and negative pressure in some environments. Administrative controls include policies and procedures regarding sick time, physical distancing, flexible workspace and work times, business travel protocols, meeting and event protocols, and employee training and communications. Another example of administrative controls is work practices such as providing resources for personal hygiene such as use of no-touch trash cans, soap dispensers, faucets, and providing alcohol-based hand rubs, disinfectants, and disposable towels, and requiring regular hand-washing. The use of PPE, such as face masks and gloves, may be appropriate depending on the circumstances – such as geographic location, job tasks, and status of COVID-19 outbreak in the community.
COVID-19 Case Management
An additional prevention measure all employers can take is to develop the policies and procedures for your workplace to identify and isolate any potentially infectious workers or visitors. Decisions will need to be made regarding employee self-screening and employer-based screenings for symptoms of COVID-19. Employers need to think about how they will handle employees who do not pass a symptom screening. They may opt to send employees home and rely on the employee’s physician to conduct further evaluation. Alternately, employers may want to consider developing in-house capability to evaluate employees identified as symptomatic for a faster and more consistent response. Eventually, a new niche of contract occupational medicine service providers may become available to fill this need for employers by delivering on-site rapid testing of employees.
Policies and procedures should also be developed regarding employees who develop COVID-19. Employers will need to consider factors that will warrant escalation of preventive measures in the instance of an outbreak at the workplace, including contact tracing and increased levels of telecommuting, as well as PPE for those who must continue to work in the physical workplace environment. Similarly, employers must plan for appropriate de-escalation and employee return to work after recovery from isolated cases or broader workplace outbreaks of COVID-19.
Training and Communications
Employers will need to make all employees aware of the new workplace policies, procedures, and practices designed to reduce COVID-19 risks. Initial training may need to be rolled-out independently for existing personnel, while incorporating the training into new-hire trainings and annual refresher trainings for new employees, either through an employer’s IIPP, Hazard Communication program, new hire orientation, or other standard health and safety trainings. In addition, regular communications to employees updating them on the company’s actions to keep the workplace safe, respond to changing conditions, and to implement new guidance and mandates from state and local agencies will reassure employees that it is safe to come to work as well as help ensure employee compliance with new company policies and procedures.
Employers will need to identify new records that need to be maintained systematically. Employers should consider how they will document COVID-19 risk evaluations for worksites and job tasks. Communications and trainings for employees should be documented and retained. Employers should consider recordkeeping policies associated with symptomatic employees, including COVID-19 and antibody testing results. In addition, as recommended by WHO, keeping records of all attendees of in-person meetings and events is wise in the event contact tracing is needed. And finally, employers need to account for COVID-19 in OSHA-mandated injury and illness logs and reporting.
Employers that haven’t already should begin to actively plan new business practices and policies to account for COVID-19 becoming a part of the “new normal” for the workplace. The sooner employers begin to plan, the smoother their transition back to work will be for all employees. Policies and practices that are adaptable as laws and agency guidance evolve, combined with training delivery systems for employees as updates are needed, will make employers nimble in this dynamic era of uncertainty. As we have all learned from this global pandemic, we are all in this together and every action taken by an employer or employee to reduce exposure risk in the workplace serves to protect not only other employees and business continuity, but also the larger community and our most vulnerable populations. In this sense, occupational health and safety efforts have never been more important.
CDC Resources and Guidance for Business and Employers:
CDC Mitigation Strategies for Communities with Local COVID-19 Transmission (includes table with workplace recommendations):
OSHA Main Page on COVID-19: https://www.osha.gov/SLTC/covid-19/standards.html
OSHA Guidance on Preparing Workplaces for COVID-19: https://www.osha.gov/Publications/OSHA3990.pdf
Cal/OSHA Main Page on COVID-19:
Cal/OSHA Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease (COVID-
US EPA main page on Coronavirus/Covid-19: https://www.epa.gov/coronavirus
WHO public advice (click on getting workplace ready icon for most current update):
Andrea is a Partner at Environmental General Counsel LLP. She handles a wide range of environmental and occupational health & safety matters. She advises companies in the
consumer product, commercial office, retail, residential, industrial, and hospitality
sectors on regulatory compliance and represents clients in agency enforcement actions.
T: 510-495-1409 E: ASumits@egcounsel.com
ENVIRONMENTAL GENERAL COUNSEL LLP
2120 University Avenue, Berkeley, CA 94704
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.