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Law360 (May 5, 2020, 5:22 PM EDT )
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| Richard Glovsky |
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| Jordon Ferguson |
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| Rufino Gaytán |
The OSHA guidance (which is not mandatory as it does not constitute a law or regulation) encourages employers to take all the following actions during COVID-19:
- Create an infectious disease preparedness and response plan. This plan should:
- Identify potential sources of infection inside and outside of the workplace.
- Identify and implement controls to reduce exposure, such as use of personal protective equipment.
- Prepare for increased absenteeism and supply chain disruptions.
- Consider downsizing or closing operations.
- Identify potential sources of infection inside and outside of the workplace.
- Prepare and implement basic infection prevention measures not included in existing OSHA requirements. These measures should encourage:
- Handwashing;
- Covering coughs and sneezes;
- Social distancing; and
- Employees to stay home if they are ill.
- Handwashing;
- Develop procedures for prompt identification and isolation of ill employees and visitors.
- Consider and implement flexible work arrangements, such as working remotely, reducing hours and alternating schedules.
- Adhere to OSHA standards for sanitary workplace.
Exposure-Risk Categories
On April 13, OSHA also issued a coronavirus response plan titled "Interim Enforcement Response Plan for Coronavirus Disease 2019."[3] The plan describes the following three exposure-risk categories applicable in various work settings.
High and Very High Exposure Risk
Jobs with high and very high exposure risk are those with high potential for exposure to known or suspected sources of COVID-19. Workplaces falling into this category include, but are not limited to:
- Hospitals treating suspected and/or confirmed COVID-19 patients;
- Nursing homes;
- Emergency medical centers;
- Emergency response facilities;
- Settings where home care or hospice care is provided and that handle human remains;
- Biomedical laboratories, including clinical laboratories; and
- Medical transport facilities.
OSHA also emphasizes the very high risk presented by aerosol-generating procedures, including bronchoscopies, sputum inductions, nebulizer therapies, endotracheal intubations and extubations, open suctioning of airways, cardiopulmonary resuscitations, and autopsies. OSHA identifies these procedures as ones needing engineering and administrative controls and personal protective equipment.
Medium Exposure Risk
Jobs with medium exposure risk include those with frequent and/or close contact with (i.e., within six feet of) people who may be (but are not known to be) infected with COVID-19. Workers in this risk group may have frequent contact with travelers returning from international locations with widespread COVID-19 transmissions.[4]
Workers fall into this category if their jobs are in areas where there is ongoing community transmission including, but not limited to, those who have contact with the general public (e.g., in schools, high-population-density work environments and some high-volume retail settings).
Lower Exposure Risk
Jobs with lower exposure risk are those that do not require contact with people known to be, or suspected of being, infected with COVID-19, nor frequent close contact with (i.e., within six feet of) the general public. Workers in this category have minimal occupational contact with the public and coworkers.
Focus of OSHA Inspections During COVID-19
The plan indicates that workplaces in the high and very high exposure-risk categories, "such as hospitals, emergency medical centers, and emergency response facilities, will typically be the focus of any inspection activities in response to COVID-19-related complaints/referrals and employer-reported illnesses." COVID-19 complaints relating to work in the medium- or lower-exposure-risk categories "will not normally result in an on-site inspection."
Suspension of Compliance With Existing OSHA Record-Keeping Requirements (With Key Exceptions)
OSHA recognizes that determining whether COVID-19 exposure is work-related and thus recordable on the OSHA 300 log may not be possible at this time. As a result, OSHA has, for now, suspended enforcement of its record-keeping requirements for COVID-19 cases, with a couple caveats.[5]
First, the temporary suspension will not apply to (1) employers in the health care industry; (2) emergency response organizations (e.g., emergency medical, firefighting and law enforcement services); and (3) correctional institutions. Employers in these categories must continue to make work-relatedness determinations pursuant to Title 29 of the Code of Federal Regulations, Part 1904. The OSHA regulations require employers to consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness.
Second, all employers must continue to record COVID-19 cases if (1) they have objective evidence that the infection may be work-related and (2) the evidence was reasonably available to the employer.
Note that state and local laws and ordinances may describe additional limitations or obligations on employers, such as requiring particular protective coverings or similar protocols.[6] [7]
Handling Displaced Employees
Certain employees may be unable to return to work during an emergency due to government or health official mandates, the impact of the emergency on employees or other individuals, or the impact of the emergency on employees' commutes. Certain laws, like the FFCRA, include protections for certain employees in emergent situations like COVID-19. Employers may want to consider the legal and practical impact of shutdowns, furloughs and employees unable to telework.[8]
Moreover, employers also may need to be cognizant of employees who typically travel for work. Certain government orders may impact the ability of those employees to return home or return to work, including quarantine orders applicable in locations to which they have traveled or upon return. Employers should stay abreast of these changes and the impacts they or other orders may have on their obligations to employees.[9]
Steps to Institute a Successful Business Continuity Plan
In light of the shutdowns that COVID-19 has caused and related health and government guidance and mandates, many employers are evaluating their plans for business continuity. Employers should create a realistic strategy for restarting and/or continuing business operations during and after crises to meet ongoing financial expectations and obligations and to protect employees and avoid potential employment-related claims.
Federal Government Guidance
Employers may want to consider implementing both an employee assistance plan and a business continuity plan. The Federal Emergency Management Agency has issued "Preparedness Planning for Your Business,"[10] a guide to help employers regain functionality after a disaster.
FEMA has updated this guidance to include FEMA's response to COVID-19[11] and includes a toolkit[12] for employers. Additionally, the U.S. Department of Homeland Security has provided employers with a business continuity plan template.[13]
Business Continuity Plan Guidance
Proper business continuity planning can supplement and work in conjunction with an employee assistance plan. In general terms, an employee assistance plan focuses on the safety of employees and an employer's responses to an emergency. A business continuity plan, however, focuses on the overall survival of the business through and following an emergency. FEMA provides a worksheet and other tools for employers to consider when adopting the elements of a BCP and the steps for implementing the same.[14]
Employers should perform a business continuity analysis to identify the effects resulting from disruption of business functions and processes to make a decision tree or other plan that helps with recovery priorities and strategies. Employers can use FEMA's Operational & Financial Impacts worksheet[15] to capture this information as discussed in its Business Impact Analysis.[16]
Moreover, employers should identify the resources, both internal and external, that are necessary and that would be expected to be available in an emergency, including personnel and working spaces, records, production facilities, utilities and third-party services. Employers also may want to consider scenarios where production machinery becomes unusable, suppliers fail to deliver, technology is disrupted, or other similar business impacts that can stymie business operations.
Employers should regularly review their business continuity plans to address:
- Emerging technologies;
- Financial obligations;
- Changes in the law or in personnel or management within their companies;
- Governmental programs and guidance; and
- Environmental developments that may impact their operations.[17]
Richard D. Glovsky is a partner, and Jordon R. Ferguson and Rufino Gaytán III are associates, at Locke Lord LLP.
This article is excerpted from Lexis Practice Advisor®, a comprehensive practical guidance resource that includes practice notes, checklists, and model annotated forms drafted by experienced attorneys to help lawyers effectively and efficiently complete their daily tasks. For more information on Lexis Practice Advisor or to sign up for a free trial, please click here. Lexis is a registered trademark of RELX Group, used under license.
Law360 is owned by LexisNexis Legal & Professional, a RELX Group company.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., 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.
[1] For the full version of this Lexis Practice Advisor practice note, see Business Continuity and Emergency Planning.
[2] OSHA's latest guidance is available here: https://www.osha.gov/Publications/OSHA3990.pdf.
[3] https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirus-disease-2019-covid-19.
[4] See Coronavirus (COVID-19) Considerations for Traveling Employees.
[5] For information on OSHA 300 logs and OSHA recordkeeping requirements, see OSH Act Requirements, Inspections, Citations, and Defenses.
[6] See Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). For additional OSHA guidance, see COVID-19 (OSHA), Prevent Worker Exposure to Coronavirus (COVID-19), and Guidance on Preparing Workplaces for COVID-19. See also COVID-19 and OSHA. For more guidance on key OSH Act legal issues, generally, see OSH Act Requirements, Inspections, Citations, and Defenses.
[7] See Pandemic Flu/Influenza/Coronavirus (COVID-19): Key Employment Law Issues, Prevention, and Response – Occupational Safety and Health Administration Best Practices for Preventing and Responding to Flu/Coronavirus Outbreaks in the Workplace. Also see Pandemic Flu/Influenza/Coronavirus (COVID-19) Prevention and Response Checklist (Best Practices for Employers).
[8] For more guidance on telecommuting employees, see Telecommuting Employees: Best Practices Checklist. For information on furloughs, see Reduction in Force (RIF) Alternatives, What Employers Need To Know About Furloughs, and Furloughs: Weighing The Unemployment Costs And Benefits.
[9] For additional guidance regarding employee travel during the COVID-19 outbreak, see Coronavirus (COVID-19) Considerations for Traveling Employees.
[10] https://www.ready.gov/business.
[11] https://www.fema.gov/coronavirus.
[12] http://coronavirus.adcouncilkit.org/.
[13] https://www.fema.gov/media-library-data/1389019980859-b64364cba1442b96dc4f4ad675f552e4/Business_ContinuityPlan_2014.pdf.
[14] See FEMA: Business Continuity Plan.
[15] https://www.fema.gov/media-library-data/1388776348838-b548b013b1cfc61fa92fc4332b615e05/Business_ImpactAnalysis_Worksheet_2014.pdf.
[16] https://www.ready.gov/business-impact-analysis.
[17] For an annotated BCP to help employers get started with drafting a BCP, see Business Continuity Plan.
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