By Leah M. Song and Gabrielle Sigel 

On June 18, 2020, U.S. OSHA issued its “Guidance on Returning to Work,” (“Reopening Guidance”) compiling best practices and existing regulatory standards to assist employers and workers return to work and reopen businesses characterized as non-essential in the earlier weeks of the COVID‑19 pandemic. OSHA described the purpose of the Reopening Guidance as a supplement to OSHA’s first COVID-19 guidance for all employers, issued on March 9, 2020, titled “Guidance on Preparing Workplaces for COVID‑19,” and to the White House’s April 16, 2020 “Guidelines for Opening Up America Again,” both of which have been analyzed on the Jenner & Block Corporate Environmental Lawyer blog here and here, respectively.  In its news release introducing the Reopening Guidance, OSHA states that “[n]on-essential businesses should reopen as state and local governments lift  stay-at-home … orders, and follow public health recommendations from the Centers for Disease Control and Prevention and other federal requirements or guidelines.”

The Reopening Guidance states that it “focuses on the need for employers to develop and implement strategies. . .” for safe work after reopening. Although OSHA does not directly state that employers must have written reopening plans, OSHA’s Reopening Guidance provides the following “guiding principles” that employers’ reopening plans “should address”:

• Hazard Assessment
• Hygiene
• Social distancing
• Identification and Isolation of Sick Employees
• Return to Work After Illness or Exposure
• Controls
• Workplace Flexibilities
• Training
• Anti-retaliation

(Reopening Guidance, pp. 6-10.) OSHA then provides suggestions on how to implement each of the “guiding principles.” Id. For instance, the Hazard Assessment guiding principle includes “practices to determine when, where, how, and to what sources of SARS-CoV-2 workers are likely to be exposed in the course of their job duties.” The Reopening Guidance provides several examples of how to implement hazard assessments, such as assessing job tasks to determine which involve occupational exposure to the virus and exposure to other members of the public or coworkers. In the discussion of the guiding principle of “Controls,” OSHA addresses PPE and makes clear, as it did in its Face Coverings guidance on June 10, 2020, that face coverings are not PPE. (Reopening Guidance, p. 8.) OSHA repeats this distinction regarding PPE in its discussion of the guiding principle of “Training.” OSHA states that although employers should train workers on how to don/doff, clean, store, maintain, and dispose of PPE, face coverings are not PPE, indicating that those training procedures are not for face coverings. (Reopening Guidance, p. 9.)  The CDC, however, has issued more comprehensive guidelines regarding use of face coverings.  OSHA concludes its discussion of the guiding principles by stating:  “Regardless of the types of infection prevention and control measures employers incorporate into their reopening plans, they should consider ways to communicate about those measures to workers, including through training … and providing a point of contact for any worker questions or concerns.”  

In the Reopening Guidance, OSHA reiterates what it states on its COVID‑19 webpage, that during the pandemic, employers continue to be responsible for complying with OSHA regulations. In the Reopening Guidance, OSHA provides an Appendix A organizing those regulatory requirements in table format. In addition, OSHA states that “[w]here there is no OSHA standard specific to SARS-CoV‑2, employers have the responsibility to provide a safe and healthful workplace that is free from serious recognized hazards” under the OSH Act’s General Duty Clause. 29 CFR 654(a)(1). (Reopening Guidance, p. 11.)

The Reopening Guidance (pp. 11-16) concludes with a series of Employer FAQs, addressing the following topics:

1. OSH Act does not prohibit worksite COVID‑19 testing, but OSHA cautions that a negative result may not indicate no hazard;
2. OSH Act does not prohibit worksite temperature checks or health screenings;
3. OSHA requirements when performing tests and screening, including to protect employees who are performing screenings and to maintain records generating employee medical information;
4. Referencing the sources of other equal employment laws, other than the OSH Act, pertaining to health and medical issues;
5. Referencing the CDC as the source of guidelines for a sick employee’s safe return to work; and
6. Advising, in general, how employers can determine whether OSHA-required PPE is needed.

As with all its published guidance, OSHA states that it is “not a standard or regulation, and it creates no new legal obligations.”

Please feel free to contact the authors with questions or for further information. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.