By Christopher Wilkinson, Shani Alexander and Tierra Piens

Law360 (June 2, 2020, 5:46 PM EDT )

Christopher Wilkinson

Shani Alexander

Tierra Piens

When companies develop their return-to-work plans as closures due to the COVID-19 pandemic end, companies should plan for increased cleaning and specialized disinfection regimes to prevent outbreaks of COVID-19 in the workplace. But blindly rushing to clean and disinfect the workplace could create problems for companies if they fail to use cleaning products that are effective against COVID-19 or expose their employees to chemicals from cleaning products in excess of the amounts deemed safe by regulatory agencies.

The Occupational Safety and Health Administration has issued guidance[1] that recommends companies clean in accordance with guidance developed by the U.S. Environmental Protection Agency and the Centers for Disease Control and Prevention. The EPA and CDC advise that outdoor and indoor areas that have been unoccupied for seven days or more only need routine cleaning (i.e., using soap or other cleaning products to remove germs, dirt, and impurities from surfaces).

This is because SARS-CoV-2, the virus that causes COVID-19, typically dies within a few hours and is killed more quickly by warmer temperatures and sunlight.[2] For indoor areas that have been occupied in the prior seven days, in addition to regular cleaning, employers should disinfect surfaces touched by multiple people using disinfectants, including electrostatic cleaning devices, that have been approved by the EPA as effective against SARS-CoV-2.[3] 

A list of disinfectants that the EPA has approved for use against SARS-CoV-2 is available on the EPA's website.[4] The EPA also recommends that companies consider removing soft and porous materials, like carpets and rugs, in high-traffic and seating areas to further reduce the risks of a COVID-19 outbreak in the workplace.

Carefully Consider Cleaning and Disinfection Guidance

Companies should ensure that their staff and sanitation vendors use disinfectants in accordance with their labeling instructions and implement precautions to limit exposure to chemicals. For example, some product labels recommend cleaners wear skin protection and eye protection, use no more than the amount of cleaning product or disinfectant recommended on the label, use water at room temperature for dilution, and have adequate ventilation.

Additionally, the EPA cautions against mixing the solution with other chemical products, encourages storage in a secure location, and recommends the labeling of diluted cleaning solutions.[5] Companies that fail to follow labeling instructions of their choice cleaning products and disinfectants risk exposing their employees and sanitation vendors to chemicals beyond levels that have been deemed safe by federal and state regulatory agencies.

The improper use of cleaning products and disinfectants could create indoor air quality issues. Though the EPA and OSHA currently do not directly regulate indoor air quality, OSHA regulations do require that employers provide a safe workplace, which includes sufficient ventilation when using cleaning products.[6] 

Some states, like California and New Jersey, do have indoor air quality regulations that companies could violate through the improper use of cleaning products and disinfectants.[7] Many other state and local agencies have issued guidance for cleaning and disinfecting workplaces.

For instance, the Los Angeles County Department of Public Health requires[8] businesses to adhere to the county's cleaning guidance.[9] Similarly, the New York City Department of Health and Mental Hygiene recommends certain cleaning and disinfection procedures.[10] Accordingly, companies should make sure that their return-to-work plans include cleaning regimes that are consistent with both federal and local rules and guidance.

In addition to creating a list of EPA-approved disinfectants that are effective against SARS-CoV-2, the EPA has initiated enforcement actions against companies that claim their products are effective against SARS-CoV-2 without first obtaining approval from the EPA.[11] 

However, companies should be aware that the EPA and OSHA do not certify companies that provide cleaning services claiming to disinfect for COVID-19. This means that companies must perform their own due diligence when hiring a sanitation vendor to disinfect a workplace to ensure the vendor complies with EPA and OSHA guidelines. 

Potential Litigation Risks and Defenses 

Failing to consider the myriad of risks places companies in legal jeopardy. Employers that proactively clean and disinfect the workplace are taking just the first step in mitigating legal claims of virus exposure made by an employee, contractor or visitor to their workplace.

Employers should also be mindful of the web of strict EPA, OSHA, and state and local government rules and guidelines regulating its efforts. Failing to do so not only heightens the risk of individual claims but also increases the chances that government regulators could initiate costly audits and enforcement actions.

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Christopher Wilkinson is a partner at Orrick Herrington & Sutcliffe LLP and a former associate solicitor for civil rights and labor management for the U.S. Department of Labor.

Shani Harmon Alexander is a managing associate at the firm.

Tierra Piens is a managing associate at the firm.

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] OSHA, Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/Publications/OSHA3990.pdf.

[2] EPA and CDC, Guidance for Cleaning & Disinfecting Public Spaces, Workplaces, Business, Schools, and Homes, https://www.cdc.gov/coronavirus/2019-ncov/community/pdf/ReOpening_America_Cleaning_Disinfection_Decision_Tool.pdf.

[3] CDC, Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes, https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html (last accessed 5/29/2020).

[4] EPA, List N: Disinfectants for Use Against SARS-CoV-2, https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2.

[5] EPA, Six Steps for Safe & Effective Disinfectant Use, https://www.epa.gov/pesticide-registration/six-steps-safe-effective-disinfectant-use.

[6] OSHA, Protect Yourself: Cleaning Chemicals and Your Health, https://www.osha.gov/Publications/3511-CleanChemPoster.pdf.

[7] New Jersey, Indoor Air Quality Standard, N.J.A.C. 12:100-13; California Division of Occupational Safety and Health Policy and Procedures Manual, P&PC-48, https://www.dir.ca.gov/DOSHPol/P&PC-48.HTM.

[8] County of Los Angeles Department of Public Health Order of the Health Officer, issued May 26, 2020, http://publichealth.lacounty.gov/media/Coronavirus/docs/HOO/HO_Order_Reopening_Safer_at_Work_and_in_the_Community_05262020_FINAL.pdf.

[9] County of Los Angeles Department of Public Health, General Cleaning Guidance for Respiratory Illness in Group Setting, http://www.publichealth.lacounty.gov/media/Coronavirus/docs/protection/GuidanceCleaning-English.pdf.

[10] New York City Department of Health, COVID-19: General Guidance for Cleaning and Disinfection for Non-Health Care Settings, https://www1.nyc.gov/assets/doh/downloads/pdf/imm/disinfection-guidance-for-businesses-covid19.pdf.

[11] EPA, Does EPA regulate companies that require cleaning services claiming to disinfect for COVID-19?, https://www.epa.gov/coronavirus/does-epa-regulate-companies-require-cleaning-services-claiming-disinfect-covid-19.

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