As businesses continue to wait for curves to begin to flatten, there is little doubt that there will be increased pressure to resume operations as quickly as possible. Businesses should begin to consider now how they will comply with best practices to safeguard employees and avoid situations that put their employees at risk.

Jeff Johnson’s March 26 blog post touched on OSHA’s emphasis to that date and is a good starting place for professional managers trying to anticipate problems that good planning can avoid. Your first step should be to consult current OSHA and CDC guidelines. You also need to check to see if your industry guidelines have been updated. For example, there are already regulations in the health care industry, some of which have been amended to facilitate more normal operation. In addition, the OSHA enforcement guidance released April 13 instructs its field offices to pay special attention to health care workers and their need for PPE. By way of illustration, recent updates to existing regulations limiting the reuse of PPE, which would have been unheard of several months ago, are now being followed even in “hot spots.” This does not mean, however, that as elective medical procedures become permitted again, those new protocols will remain. As we can see from the President’s guidelines for operation in Phases 1, 2 and 3, it is likely that things will reopen over time, and regulations will evolve accordingly.

In order to prepare for reopening your operations or expanding your current operations to return to more “normal” levels of activity, you should consider planning in this order.

Hazard Assessment

Managers should begin convening meetings of Human Resources, Safety and Operations management to assess what parts of the operation present greater hazards and adopt solutions to mitigate them. You should also consider how to involve employees in these efforts and in what stage of your planning you think you should do so.

Social Distancing

We already know that some forms of social distancing will be required in the early phases of operation. Is your operational set-up conducive to that? Or can it be reworked to provide some distancing.  Do current ingress and egress routes make social distancing difficult?

What steps can be taken to open up bottlenecks or work station crowding? For example, should alternative access be opened or work stations be retrofitted with sneeze guards? Should workers job share or operate under staggered schedules to mitigate risk during start up?

Personal Protective Equipment

• What kind of PPE is needed, if any? Can it be obtained now? Increased pricing should be factored into start-up costs and captured, as this may qualify for some financial relief packages. 
• Who will provide training on how to properly use and care for PPE? OSHA has recently offered some relaxation of training requirements and auditing requirements, but that doesn’t mean that this can be completely neglected. 
• Is the exposure risk severe enough to require protective clothing? Can it be reusable, and if so, who will be required to launder or clean it?

Medical Testing and Other Health-Related Inquiries

• If you plan return-to-work requirements after employees have been sick, how will those procedures be communicated and enforced? 
• It has come to be expected that an employee’s temperature may be taken when they report to work. Thought must be given to who will perform that sensitive function and how employee privacy will be protected during that process. If the employer intends to record this at all, it must be stored in confidential medical records.
• If an employer plans questionnaires on non-work exposure, those involve different questions as to privacy and non-discrimination review. What questions will be asked? By whom? And how will responses be recorded? 
• Will employees also need medical/occupational services, such as a doctor’s clearance note or COVID-19 testing on return? Among other issues, employers should consider whether employees will be paid for wait time or other related delays these might impose.

Engineering Controls and Related Policies

• Can exposures be reduced in feasible ways? Sneeze shields have become more common in the grocery industry. Do they need to be installed in work spaces and cafeterias?  
• Are handwashing facilities ready and well stocked? Will adequate breaks be provided to allow employees adequate time to use them frequently?
• In the retail environment, is there enough hand sanitizer for employees who cannot reach a restroom after every transaction?
• Who will be empowered to send employees home if they exhibit symptoms of COVID-19? What training do your supervisors need to enforce this requirement?
• Supervisors also need training to avoid retaliation claims by employees who make demands for additional safeguards.

Cleaning and Sanitation

• Communication to employees inviting them to return to work often mention that the facility has been cleaned. Make plans to do so now, or to contract for it to be done at a later date so that it can be accomplished before the employee reenters.
• There are several levels of cleaning, including regular cleaning, deep cleaning, and sanitizing and disinfecting. What will you provide and for how long?
• Do periodic cleanings need to be enhanced?

Record-Keeping and Compliance

• OSHA has also just issued new guidance for reporting COVID-19 cases. What processes will you put in place to comply with OSHA 300 reporting requirements?
• Have any new or hazardous cleaning products been introduced to the workplace, and if so, have they been added to your Hazard Communication Program for employees? It is vital that this program be kept up to date as it is generally the first thing OSHA field personnel request during an inspection. While OSHA’s new enforcement guidance allows some leeway, a process needs to be put in place to ensure ultimate compliance.

In short, fast-changing OSHA guidance necessitates a concerted effort on the part of management before ramping up or reopening operations. Speaking of “concerted efforts,” it is important to keep in mind that unions typically have well-developed and active campaigns devoted to worker safety. This is one area where paying consideration to employees’ concerns is particularly important to ensure a safe transition back to work, with both regulatory compliance and employee peace of mind as the goal.

This alert was written by Kathleen Pontone, a lawyer in the Labor, Employment, Benefits & Immigration practice group at Miles & Stockbridge.

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