News

Safe Reopening Guidelines

July 22, 2020

By Alan C. Blanco, Esquire

Employer Operating Requirements & Guidelines and How to File Complaints

Employers and employees may access vast amounts of data online that outlines what businesses either must be doing or should be doing to support safe reopening.  This information overlaps in part with information about how businesses interface with their customers and the general public. Much of the information is specific to the type of business being conducted.  Information changes very frequently so interested persons should review the latest information available.  Relevant information may be found at the federal, state, and county levels of government.

Federal Guidance on Safe Reopening

Guidance on safe business opening is available from the Centers for Disease Control and Prevention (CDC) and from the Occupational Safety and Health Administration (OSHA).  Much of that guidance may be accessed on the CDC website. The CDC page at the preceding link covers a number of topics including reopening guidance, mitigation guidance, prevention, and support and contains some decision making tools addressing cleaning and disinfecting and employers with vulnerable workers.

OSHA has published a 32 page booklet entitled “Guidance on Preparing Workplaces for COVID-19.” This guidance recommends that employers develop an infectious disease preparedness and response plan that can guide protective actions against COVID-19.  The plan should address levels of risk associated with worksites and job tasks, worker individual risk factors, and controls necessary to address risks.  Basic infection prevention measures should be followed.  Policies should be developed for the prompt identification and isolation of sick people.  Workplace flexibility is encouraged when possible.  A hierarchy of controls should be used to address workplace hazards.  These include engineering controls, administrative controls, safe work practices (a type of administrative control) and PPE.  Engineering controls are those that reduce worker exposure to hazards without relying on worker behavior.  They include things like increasing ventilation rates, using high efficiency filters, using physical barriers like clear plastic sneeze guards, etc.  Administrative controls require action by the worker and employer, and include things like having sick workers stay home, changing schedules, replacing face to face contact with virtual contact, discontinuing non-essential travel, etc.  Observing safe work practices is a type of administrative control.  PPE such as face masks, face shields, and other PPE appropriate for the type of worker exposure must be provided.  The Guidance indicates this is required for workers who work within six feet of patients known or suspected of being infected with COVID-19.

OSHA has not issued new standards specifically for COVID-19.  It views certain of its existing standards to be applicable, notably its standards for PPE (for general industry and for construction), its Respiratory Protection Standard, and its general duty clause.  The OSH Act’s general duty clause  requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  In addition, under certain specific circumstances, COVID-19 may be a recordable illness under OSHA’s recordkeeping requirements.  For more information, see:  https://www.osha.gov/SLTC/covid-19/standards.html.

In addition to following CDC and OSHA guidance, businesses may not illegally discriminate against employees or customers in responding to challenges presented by COVID-19.  National origin and race discrimination, including mistreatment and harassment of Asian Americans and other people of Asian descent, is clearly illegal. Reopening plans for businesses must also consider how to avoid discriminating against workers based on age in violation of the Age Discrimination in Employment Act (ADEA). The ADEA prohibits employers from “benevolent” exclusion of older workers from the workplace.  The ADA protects the privacy of employee medical information, requires reasonable accommodation of employee disabilities, and regulates medical examinations and inquiries by employers.  For further information, see:  https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

Pennsylvania Guidance and Mandates on Safe Reopening

Pennsylvania has issued a combination of guidance and enforceable mandates, some of which may be accessed through the Governor’s online COVID-19 Business Guidance.  Here is the “Safety Checklist” provided there, as of July 21, 2020:

Safety Checklist

To reduce the risk of spreading COVID-19, limit the chances for infection. We encourage you to keep teleworking where possible. If telework or remote work is not an option, here are the things you need to do to open and operate safely.

• Everyone must wear a mask. That includes workers and customers. Remember, my mask protects you and your mask protects me.
• Put up signs about your safety measures. Share the steps you are taking to protect everyone’s health and safety. See the section with printable business safety signs available for download.
• Limit crowds. Have delivery or pick-up options whenever possible. Offer appointments if you must have customers in your space. If you can’t schedule appointments, limit the number of people to 50% occupancy.
• Clean and disinfect frequently touched surfaces. This includes things like doors, counters, shared equipment or tools, common areas like waiting rooms, breakrooms, bathrooms, and more. If people touch something a lot, clean it a lot. For lower traffic areas, clean between shifts and any other times you clean based on your usual routine.
• Protect your workers. Provide workers with masks. See the section on sourcing personal protective equipment (PPE). Train your workers about symptoms of COVID-19 and what to do if they feel sick.  Make sure they understand the new safety measures everyone must follow. Screen workers for symptoms before they start work. Send home anyone with a temperature 100.4 degrees Fahrenheit or higher. Schedule hourly hand-washing breaks. Place workstations at least six feet apart. Make sure there is enough room for physical distancing in breakrooms and common areas. For workers dealing with customers, make sure there are physical barriers or shields between them and the public.
• Keep groups of workers small. Stagger shift start and stop times to keep groups from entering and exiting at the same time. Do the same for scheduled breaks. Hold meetings and trainings virtually. If you must meet in-person, limit the number of attendees. Stay six feet apart and don’t have more than 10 people in a physical meeting. Read the section on gatherings and events for rules about groups.
• Staff up appropriately. Have a Pandemic Safety Officer in charge of COVID-19 safety. Assign enough workers handle new safety tasks including wellness screenings, cleaning, managing crowd sizes, maintaining order and physical distances, and security.
• Have a plan for dealing with COVID-19 cases. Make sure workers know the steps to take if exposed to someone with a probable or confirmed case of COVID-19. See the section on handling cases of COVID-19.

In addition general guidance applicable to all businesses, Pennsylvania has provided specific guidance that depends on the type of business or industry.  For example, there is specific guidance for construction, restaurants, agriculture, banks, salons and barber shops, recreation, camps and pools, hospitals, aging service providers, home care agencies, dental personnel, and others.

Procedures for school reopening are of interest to educators and to parents.  The PA Department of Education has provided resources on COVID-19 planning.

Required COVID-19 Poster

Pennsylvania businesses are required to print, sign, and post a sign entitled “COVID-19 Safety Procedures for Businesses.”  A copy of the sign is available from the Commonwealth.

How and Where to Report Workplace Violations

Employers, employees, and members of the general public have the option of reporting non-compliant businesses to the appropriate authorities.  Pennsylvania has issued guidance for reporting violations.

Reporting Health & Safety Violations

There are several options for reporting possible workplace health and safety violations related to COVID-19.

1. Contact your local health department or a law enforcement agency.
2. Use the PA Department of Health’s webform to submit a complaint.
3. If in violation of OSHA guidance, file a complaint at OSHA.gov.

In addition to the PA Department of Health’s complaint form, available through the link above, Allegheny County has provided the following procedure for reporting complaints:

Complaints regarding establishments which are violating the Health Department order may be sent to the department through the Allegheny County Support Center webform (select Request a Service, then Health Department to begin) or by calling the Information Center at 412-350-INFO (412-350-4636).

The web of guidelines and requirements for businesses to reopen safely in the COVID-19 pandemic while properly protecting their customers and employees is complex and changes continually.  For more information, please contact an attorney in Rothman Gordon’s Labor and Employment department.