A Phased Approach: OSHA Issues Guidance for Reopening ‘Non-Essential’ Businesses

22 June 2020 Blog
Authors: Alexander R. P. Dunn
Published To: Coronavirus Resource Center:Back to Business Labor & Employment Law Perspectives

As state and local authorities around the country continue to lift stay-at-home orders, the next challenge for businesses deemed “non-essential” under these orders is clear:  How do we reopen safely during an ongoing pandemic?  On June 17, the Occupational Safety and Health Administration (OSHA) set out its view on the question.  The new OSHA guidance recommends a three-phase approach for reopening and lists nine “guiding principles” that employers should address in their reopening plans.  During all three reopening phases, OSHA recommends that businesses implement strategies for basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training. The OSHA guidance begins with this introduction: “[t]his guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.”

In Phase 1, OSHA suggests that businesses take the following measures:

  • Consider allowing employees to telework.
  • Consider limiting the number of employees in the workplace to strictly maintain social distancing.
  • When feasible, accommodate workers at higher risk of severe illness, including elderly individuals and individuals with underlying health risks.
  • Consider accommodating workers with family members at higher risk.
  • Limit non-essential business travel.

Unfortunately, OSHA’s guidance does not offer any precise metrics for employers to determine when they should move from Phase 1 to Phase 2.  Businesses should consider OSHA’s guiding principles (discussed below), continue to closely monitor local conditions, and heed the advice of state and local authorities when deciding to transition phases.

When an employer moves to Phase 2, OSHA suggests implementing these practices:

  • Continue to make telework available where possible.
  • Ease limitations on the number of employees in the workplace, but continue to maintain moderate to strict social distancing policies where appropriate.
  • Continue to accommodate workers at higher risk.
  • Resume non-essential business travel.

OSHA also does not offer guidance on when to move from Phase 2 to Phase 3.  However, Phase 3 is a return to business as normal, so it is likely that businesses should only move to Phase 3 after the ongoing COVID-19 pandemic is substantially over. 

OSHA’s guidance is clear that there is no one-size-fits-all reopening plan; each business will need to develop its own plan, one that takes into account the nature of the business itself and local conditions.  To assist employers with developing these plans, OSHA’s guidance includes nine principles that every reopening plan should address and provides examples of how to implement those principles (review the guidance itself for examples). Here are those principles:

  1. Hazard Assessment, including practices to determine when, where, how, and to what sources of COVID-19 workers are likely to be exposed in the course of their job duties.
  2. Hygiene, including practices for hand hygiene, respiratory etiquette, and cleaning and disinfection.
  3. Social Distancing, including practices for maximizing to the extent feasible and maintaining distance between all people, including workers, customers, and visitors. Six feet of distance is a general rule of thumb, though social distancing practices may change as changes in community transmission of COVID-19 and other criteria prompt communities to move through the reopening phases.
  4. Identification and isolation of sick employees, including practices for worker self-monitoring or screening, and isolating and excluding from the workplace any employees with signs or symptoms of COVID-19.
  5. Return to work after illness or exposure, including after workers recover from COVID-19 or complete recommended self-quarantine after exposure to a person with COVID-19.  Here, OSHA refers employers to the CDC guidance on returning to work, which differs for critical infrastructure workers and non-critical infrastructure employers.
  6. Controls, including engineering and administrative controls, safe work practices, and personal protective equipment (PPE) selected as a result of an employer’s hazard assessment.
  7. Workplace flexibilities, including those concerning remote work (i.e., telework) and sick leave.
  8. Training, including practices for ensuring employees receive training on the signs, symptoms, and risk factors associated with COVID-19; where, how, and to what sources of COVID-19 employees might be exposed in the workplace; and how to prevent the spread of COVID-19 at work.
  9. Anti-retaliation, including practices for ensuring that no adverse or retaliatory action is taken against an employee who adheres to these guidelines or raises workplace safety and health concerns.

OSHA describes its guidance as supplemental to the Opening Up America Again guidance issued by the White House and Centers for Disease Control (CDC).  Additional guidance from OSHA during the ongoing COVID-19 pandemic can be found on OSHA’s COVID-19 resource page.

Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services