FEDERAL AGENCIES CONTINUE TO PUBLISH NEW GUIDANCE FOR EMPLOYERS ON COVID

By Christopher T. Vrountas, Esq . and Allison Esquire, Vrountas, Ayer & Chandler, P.C.

We might be reopening, albeit slowly. But COVID-19 is here to stay, at least for some time. To face this continuing challenge, federal agencies continue to update their legal guidance about the COVID-related obligations employers have to their employees. It can be challenging for businesses to stay current with all of these changes, particularly when it is already difficult enough just to re-start operations and run a business profitably. To make that process easier, here is a summary of some of the important developments coming from the federal government.

OSHA FAQ'S ON COVID

In early July, the DOL published new COVID-19 specific FAQ’s intended to guide employers about the steps they can take during the pandemic to comply with the Occupational Health and Safety Act (“OSHA”). The FAQ’s address a variety of important topics, including cleaning and disinfecting protocols, training, and handwashing facilities. The FAQ’s also address dealing with a COVID positive test and the controversial topics of cloth face coverings.

TESTING

On the issue of testing, OSHA does not require employers to notify other employees if one of their coworkers gets COVID-19, but such notification may nevertheless be an advisable step to protect other workers from exposure to the virus that causes COVID-19. The DOL recommends that workers tell their supervisors if they have tested positive for COVID-19 sothat employer can take steps to protect other workers. Citing to the CDC Guidance for Business and

"It can be challenging for businesses to stay current with all of these changes, particularly when it is already difficult enough just to re-start operations and run a business profitably."

employers, the DOL suggests that after a confirmed positive case, employers determine which employees may have been exposed to the virus and inform employees of their possible exposure to COVID19 in the workplace. The DOL also notes in its FAQs that in

deciding exactly what and how an employer tells its workers about the potential exposure, the employer must maintain confidentiality of medical information. Additional safety steps in the case of a confirmed COVID case might also include cleaning and disinfecting, notifying other workers to monitor themselves for signs/symptoms of COVID-19, or implementing a screening program in the workplace (e.g., for signs/symptoms of COVID19 among workers), and following CDC recommendations for when employees can return to work after having COVID-19.

MASKS

As far as cloth face coverings are concerned, the DOL has taken the position again that employers are not specifically required to provide cloth face coverings to their workers. However, the DOL notes in its FAQ’s that employers may choose to require face coverings nonetheless. The strong implication is that cloth face coverages offer an effective way to protect employees from the “hazards” of COVID-19 and requiring their use supports the employer in fulfilling its general duty under OSHA to provide a safe workplace. The DOL makes a point in its FAQs to distinguish between cloth face coverings, which are not considered PPE, and surgical masks, respirators, and other face protection that are considered PPE required for certain industries under OSHA. As noted by the DOL, whether or not cloth face coverings are required by employers, they are NOT appropriate substitutes for PPE such as N95 respirators or medical face masks in workplaces where such respirators or face masks are recommended or required to protect the wearer.

What is clear from the FAQ’s is that the virus that causes COVID-19 is among the workplace hazards from which employers must protect their workers in accordance with OSHA. While OSHA may not specifically require employers to meet its guidelines (such as those about screening employees, cleaning and disinfecting, isolating sick

mployees, contact tracing for workplace exposure, and mandating cloth face coverings), the DOL offers these protocols nevertheless as useful steps for employers to minimize transmission of the virus and keep the workplace safe in fulfillment of OSHA obligations. And as always contact counsel for any specific guidance you may need.

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