In part one of this series, we covered the principles that should govern how you plan for the resumption of more “normal” operations. In particular, we explained that following OSHA’s recent Guidance on Preparing Workforces for COVID-19, together with CDC guidelines, is the best way to plan for what’s next. We also discussed the importance of OSHA’s Hierarchy of Risk. In this second alert, we turn to the critically important Infectious Disease Preparedness and Response Plan as the central feature of your back-to-work plan.
Developing a Preparedness and Response Plan
All employers want to prevent the spread of the coronavirus, and will create some kind of plan for doing so. Indeed, preventing the spread of this disease is likely to provide the broader benefit of improving the overall health of your workforce by reducing the spread of communicable diseases generally. Creating a plan that controls the spread of disease in the workplace is not rocket science, and as our awareness of how to do so has risen substantially in the wake of the COVID-19 pandemic, many of us could likely figure out a reasonable plan on our own.
We strongly recommend, however, that you create your plan specifically under the OSHA framework we discussed previously. Some employers already have comprehensive safety and health plans, part of which should include an infectious disease preparedness and response plan. Those employers should update their existing plans to reflect the latest OSHA and CDC guidance on preventing the spread of respiratory infection. Comprehensive safety and health plans are beyond the scope of this alert, but you can find guidance on them here.
This approach relies mostly on common sense. First, the OSHA plan rubric takes you through specific considerations that make it more likely your plan will be both maximally effective and appropriate for your industry and workplace. Second, when employees complain, they usually complain to OSHA or their state Fair Employment Practices (FEP) agency, and when either agency responds, it will weigh in your favor that you have an OSHA-derived plan.
There are at least four elements that must be considered in the creation of this plan: policy; prevention and response protocols; communication; and documentation.
Create an express statement that it is the policy of your organization to protect your workforce, customers, and third parties from the specific hazard that has essentially led to the shutdown of broad swaths of the U.S. economy: the viral pathogen known as the novel coronavirus that leads to illness known as SARS-CoV-2, or COVID-19. Your plan will have to be optimized to prevent COVID-19, but by doing that you will have an effective approach for most, if not all, infectious diseases that could be transmitted in your workplace. We will be posting model policy language in connection with our upcoming webinar.
These are the core of your plan:
First, OSHA recommends that all businesses implement a plan to address the following exposure risks and implement appropriate mitigation controls:
- Interaction among the general public, customers, and coworkers
- Interaction specifically with sick individuals or those at high risk of infection
- Non-occupational factors at home and in a community setting
- Individual employee risk factors (e.g., older age; presence of chronic medical conditions, including immunocompromising conditions, pregnancy, and other risk factors that emerge as our knowledge of this disease expands)
Second, you must also consider the hierarchy of risk (VERY HIGH, HIGH, MEDIUM, and LOW) discussed in our first alert. Because at least the first two of the above exposure risks are industry- and workplace-specific, this risk assessment will send you in one of two directions: If your business involves interacting with known COVID-19 patients or handling materials that are known to be at risk of carrying the coronavirus, it is in the VERY HIGH or HIGH risk category. If it does neither of these activities, it is in the MEDIUM or LOW risk category.
Third, your plan must consider which of the four types of controls (also identified in the first alert) will come into play to mitigate the risk of spread. These are the heart of your prevention strategy:
- Engineering (physical changes to the workspace)
- Administrative (rules and training, both for prevention and for symptomatic employees)
- Safe Work Practices (required for VERY HIGH and HIGH risk workplaces, but relevant in all workplaces for COVID-19)
Note that the types of controls OSHA associates with VERY HIGH and HIGH risk workplaces (engineering and safe work practices) may well be highly relevant in MEDIUM and LOW risk locations for the coronavirus. It may also be prudent or even necessary to reengineer workspaces – such as by increasing distances, or installing barriers or glass shields. And creating safe work practices such as hand-washing and surface cleaning should be part of any plan.
If you already have FMLA leave and/or other flexible work policies that are relevant to COVID-19, you may want to expressly draw that connection in your plan. Recently-enacted federal paid leave requirements are the subject of some of our recent alerts on this subject.
You are now ready to work through creating the plan with these building blocks in mind:
- Decide which of the exposure risks noted above are relevant to your particular business and workplace: interaction with the public, customers, and/or coworkers; interaction with sick individuals; non-occupational risks (community or home); and high-risk individuals.
- Assess which of the four levels of risk is in play: VERY HIGH, HIGH, MEDIUM, or LOW.
- Consider which controls will be effective in either preventing the transmission of the virus or in responding to infection: Engineering, Administrative, PPE, and Safe Work Practices.
- If you are in Maine, you will also have to conform your plan to the state’s recently-issued checklist system. Under this system, businesses cannot reopen until they go to the state’s checklist website, find their industry checklist, and certify that they will follow the guidelines. For now, there are checklists only for the industries allowed to reopen in May. All businesses must also agree to follow the state’s general checklist.
- As you complete this part of your plan, you will need to make sure you haven’t overlooked relevant steps from OSHA’s list of 10 preventative measures we published in our prior alert, or from the latest CDC Guidelines. There is considerable overlap among all these resources, but they are constantly being updated, so consult them as you finalize your plan, and check them periodically. Remember also that OSHA has issued one-page reference guides for all employers generally, and the following specific industries: retail, construction, manufacturing, and package delivery.
No policy or plan is of much value if your employees don’t know about it. Particularly with the COVID-19 pandemic, you should go far beyond your typical strategy for rolling out a new policy. Employees are going to be anxious about whether it’s safe to return to work. How well you communicate your plan will go a long way toward easing that anxiety. You should also empower them to build a culture of compliance. If you are a customer- or public-facing business, remember that they have the same anxieties as your employees, and communicate relevant parts of your plan to them as well, to assure them that it’s safe to do business with your organization. If your employees are required to follow a checklist in connection with customer interactions, such as site visits, consider having them share that checklist with customers and get their agreement to follow it too.
Employers are well-aware of employees’ rights to be free from retaliation for reporting unlawful, unsafe, or unhealthy conditions or practices, whether related to the COVID-19 pandemic or not. These rights arise under both federal (OSH Act) and state (whistleblower protection) laws. By educating employees about the risk of infection and the practices required to mitigate that risk, and by encouraging employees to report unsafe conditions related to COVID-19, employers will lower their own risk of claims associated with the return of concerned employees to the new normal of the workplace.
Basic record-keeping is the final step in activating your plan. It should cover the following:
- Recording and Reporting Incidents of Illness. Employers should develop procedures for employees to report when they are sick or experiencing symptoms, encourage prompt identification/isolation, and encourage self-monitoring if potential exposure is suspected.
- Recording Complaints. When employees report what they claim are unsafe conditions, or non-compliance with the organization’s Preparedness and Response Plan, keep a record of the complaint as well as the company’s response. A company that willingly records employee concerns is in a much better position to defend against claims that it ignored complaints or retaliated against the reporter.
In our final alert in this series, we’ll explain why there are additional benefits, beyond preventing spread, to doing the work to create an Infectious Disease Preparedness and Response Plan. In particular, we’ll look at the liability issues associated with the coronavirus, including to third parties, such as customers, and employees, through workers compensation, or otherwise.
Don't forget to register for our webinar on Tuesday, May 5 at 12:00 pm when we go into further detail on how to create a customized OSHA-compliant plan for your workplace.
For questions on how to safely reopen your business, or for guidance on creating a Preparedness and Response Plan for your organization, please contact firm attorneys Jim Erwin, Suzanne King, or Elizabeth Frazier.
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