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Recent CDC recommendations on masking has caused confusion for employers everywhere. Guidance advises that those vaccinated could resume many of their normal routines without wearing a mask. However, the CDC doesn’t govern employers or fine them for non-compliance, OSHA does. As a result, employers are left wondering if they lift their facemask requirements or not.
The most recent information from U.S. Occupational Safety and Health Administration (OSHA) from January 29th stated that employers should not distinguish between vaccinated and unvaccinated employees. But doesn’t that contradict what the CDC released in their newest guidance? OSHA did acknowledge the CDC guidelines mid-May, but has not yet specifically advised employers on what to do. Companies are working around these guidelines (and lack thereof) to build policies that are most fitting to their level of exposure and potential liability.
In addition to updating mask guidance, you can look for other changes from OSHA. President Biden nominated Doug Parker to lead OSHA. Parker currently heads California’s OSHA division (Cal/OSHA). While his tenure at Cal/OSHA has been brief, his time there strongly suggests the potential for new federal standards and increased enforcement. Cal/OSHA standards are complex and more stringent than Federal OSHA and provide standards that have no federal counterpart. They laid the groundwork for many standards that have yet to be enacted at the federal level. The aerosol transmissible diseases (ATD) standard may be a preview of a federal workplace infectious disease standard, especially in the wake of COVID. That standard has already sparked a National Emphasis Program and an imminent federal emergency temporary standard (which Parker said would stand up to legal challenges during his confirmation hearing).
How much of a California flare will he bring to the federal agency and what should you expect as an employer?
Common consensus is that employers can expect increased enforcement under the Biden administration… more inspections, more citations, less negotiating and more litigating. The new administration has made it clear they intend to double the number of investigators. It is not a matter of if, but when, employers will see an uptick in OSHA inspectors knocking on doors.
When OSHA does arrive, it is important for you to have your compliance playbooks at the ready. You can prepare now, regardless of the current regulatory and enforcement landscape, to better protect your workforce.
As The Employer Advocate, AAG is happy to work with you to discuss your facemask options, areas to consider before you change your existing policy as well as when an outbreak or complication from a vaccine may be OSHA recordable.There are now more than 46,000 confirmed cases across the globe, with the vast majority in mainland China, and 15 confirmed cases in the U.S. Many details about the virus are unknown, including its severity and how it spreads, leaving employers with many questions about how to appropriately respond.
New guidance is available for employers from the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and California’s Division of Occupational Safety and Health (Cal/OSHA).
On February 7, 2020, the CDC published Interim Guidance for Businesses and Employers to Plan and Respond to 2019 Novel Coronavirus (2019-nCoV), providing important information for non-healthcare employers to help prevent workplace exposures to COVID-19.
The CDC provides detailed steps for employers to take now. The CDC’s recommendations fall under six main areas:
1. Actively encourage sick employees to stay home. Employees with symptoms of acute respiratory illness should stay home and not come to work until they are fever-free and free from symptoms for at least 24 hours. The CDC encourages employers not to require employees who have an acute respiratory illness to present a doctor’s note to validate their illness or to return to work because the medical facilities may be overwhelmed. Although not legally required, employers should carefully consider whether this approach is appropriate in their workplaces.
2. Separate sick employees. Employees who appear to have acute respiratory illness symptoms (i.e., cough or shortness of breath) should be separated from other employees and sent home immediately.
3. Emphasize staying home when sick, respiratory etiquette, and hand hygiene by all employees. The CDC provides links to posters that encourage employees to stay home when sick, cough and sneeze etiquette, and hand hygiene and recommends that employers put posters at the entrance to the workplace and in other work areas. The CDC also encourages employers to provide tissues, no-touch receptacles, hand sanitizer, and instructions on handwashing and use of hand sanitizer.
4. Perform routine environmental cleaning. The CDC recommends routine cleaning of all frequently touched surfaces and that employers provide disposable wipes so that commonly used surfaces, such as doorknobs, can be wiped down by employees before each use. The CDC does not recommend any particular cleaning product or additional disinfection beyond routine cleaning at this time.
5. Advise employees to take certain steps before traveling. Everyone should check the CDC’s Traveler’s Health Notices for each country before traveling and not travel if they have symptoms of acute respiratory illness. Employers also should make sure that employees know what to do and who to contact if they become sick while traveling.
6. Additional Measures. The CDC recommends that employees who have a sick family member at home with COVID-19 “should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.”
The CDC has published an extensive guidance for conducting a risk assessment and provides associated recommendations in its Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential 2019 Novel Coronavirus (2019-nCoV) Exposure in Travel-associated or Community Settings.
Employers who are concerned that an employee may have been exposed to the virus should consult the CDC’s risk assessment. This guidance addresses various potential exposure scenarios and identifies four exposure risk categories: (1) High Risk; (2) Medium Risk; (3) Low Risk; and (4) No Identifiable Risk. Based on these exposure risk categories, the CDC provides recommendations for exposure risk management, including appropriate restrictions on public activities (including workplaces), medical evaluation, and travel restrictions depending on whether the individual has symptoms of COVID-19. The CDC has provided separate guidance for healthcare settings.
Employees who live in the same household as someone with confirmed COVID-19, for example, may fall under “High Risk” or “Medium Risk,” depending on the circumstances. Individuals who are “High Risk” but have no symptoms should be quarantined (voluntary or under public health orders) for 14 days. For employees who fall under the “Medium Risk” category, as long as they have no symptoms, the CDC generally recommends that they avoid areas where people congregate, which includes workplaces, for 14 days. However, the CDC says that employers may consider, case-by-case and in consultation with public health officials, whether these individuals may come to work without entering crowded locations. These complex decisions must be considered carefully in the context of the workplace and multiple layers of legal and other considerations.
If an employee is confirmed to have the COVID-19 infection, the CDC recommends that employers inform coworkers of potential exposure. Knowledge about potential exposure is certainly important, but employers should consider legal issues including confidentiality requirements under the Americans with Disabilities Act and state law.
Until now, most employers have been appropriately focused on limiting potential exposure from individuals who had recently traveled to Hubei or other areas in mainland China. If this outbreak continues to grow across the U.S. or in certain geographic areas, employers will be forced to manage the risk of employees potentially bringing the virus to work as a result of exposures at home or otherwise in their own communities. Employers should develop strategies now that are appropriate for their workplaces, including communications to employees.
In its Guidance for Businesses and Employers, the CDC also recommends that all employers plan for a potential outbreak of COVID-19 in the U.S. and be prepared to implement strategies to protect their workforce while ensuring continuity of operations. Planning for a potential outbreak includes identifying and communicating objectives, such as “(a) reducing transmission among staff, (b) protecting people who are at higher risk for adverse health complications, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains.” Among other things, the CDC recommends that employers now consider whether, when faced with an outbreak of the illness, they could have employees telecommute or stagger shifts to create physical distance among employees and whether they have the infrastructure to support those efforts. The CDC also recommends that employers consider plans to minimize exposure between employees and the public (if public officials call for social distancing) and prepare for increased absenteeism.
All employers should review the CDC’s complete Guidance for Businesses and Employers. The CDC’s guidance is not a legal mandate for employers. OSHA and many state laws, however, impose a general duty on all employers to provide workers with work environments free from recognized hazards. Federal and state mandatory requirements may apply, particularly in higher risk industries, to prevent occupational exposure to COVID-19.
OSHA has published detailed information on hazard recognition, medical information, potentially applicable OSHA standards, control and prevention, as well as additional resources and information about workers’ rights. As OSHA explains, without sustained human-to-human transmission, most U.S. workers remain at low risk of exposure and infection. However, OSHA identifies important but common sense practices for all workers and employers to help prevent worker exposure to COVID-19: proper handwashing including the use of alcohol-based rub (hand sanitizer), avoid touching eyes, nose, or mouth with unwashed hands, and avoid close contact with sick people.
Certain groups of workers, especially those in healthcare, are at a higher risk for potential exposure and employers and workers must take additional precautions. OSHA provides additional guidance for groups of workers with increased risk of exposure, including:
The CDC also has published guidance for healthcare professionals and laboratories.
Cal/OSHA also issued guidance on requirements to protect healthcare workers from COVID-19. The guidance covers the safety requirements when providing care for suspected or confirmed patients of the respiratory disease or when handling pathogens in laboratory settings. COVID-19 is an airborne infectious disease covered by Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard, which requires employers to protect workers from diseases and pathogens transmitted by aerosols and droplets. The ATD standard applies in healthcare facilities, laboratories, public health services, police services, and other locations where employees are reasonably anticipated to be exposed to confirmed or suspected cases of aerosol transmissible diseases. The ATD standard requires employers to have an ATD Exposure Control Plan that includes procedures to identify COVID-19 cases, provision of appropriate personal protective equipment, among other things. Employers also must provide training for their employees covering many items related to COVID-19, such as the signs and symptoms, modes of transmission, methods to prevent exposure, and personal protective equipment.
Employers should continue to monitor information coming from state and local health departments and promptly report any suspected cases of COVID-19 to the local health department. Healthcare employers should consult guidance from OSHA, the CDC, and other relevant agencies. This is a rapidly evolving situation and all information in this update is subject to change. For the latest information, please review the relevant agency communications.
Article Courtesy of Jackson Lewis