OSHA released a guide to nonessential businesses on safely returning to work during the COVID-19 pandemic. Businesses should review this guidance, keeping in mind that businesses have a duty under OSHA’s general duty clause to keep employee’s safe. Following this guidance could operate as a defense to an employee safety complaint related to COVID-19 protections.

OSHA divides the reopening of non-essential businesses in terms of three phases:

Phase 1:

  • Limit in person work and observe social distancing for those returning to the workplace
  • Continue telework where feasible
  • Consider flexible work hours and locations to improve social distancing
  • Provide accommodations to workers at higher risk for severe COVID-19 complications–the elderly and those with serious underlying health conditions
  • Consider accommodations for workers with household members at higher risk of severe COVID-19 complications
  • Limit non-essential business travel

Phase 2:

  • Ease limits on the number of workers in the workplace, but continue strict social distancing
  • Continue to provide telework where possible
  • Resume non-essential business travel
  • Continue to accommodate high risk workers as identified in Phase 1

Phase 3:

  • Resume unrestricted staffing as normal

At all phases:

  • Develop a plan to monitor and respond to resurgence of COVID-19 in the workplace or community
  • Develop a plan for contact tracing in the event of a workplace exposure

A re-Opening plan should address:

  • Hazard assessment
  • Hygiene practices
  • Social distancing
  • Identification and isolation of sick workers
  • Return to work after illness or exposure
  • Controls, including PPE (NOTE: cloth face coverings are not PPE but may be advisable per health department guidance)
  • Workplace flexibility
  • Training
  • Anti-retaliation

OSHA noted in its FAQs that, if employers maintain records of temperature screenings and exposures, those records may be subject to its exposure and medical record standard, which requires retention for the duration of the employee’s employment plus 30 years.