Is Your Business Ready to Reopen?

May 22, 2020

In Colorado, Governor Polis has relaxed some restrictions to begin allowing some businesses to cautiously reopen. But is your business truly ready? Before you really start bringing employees back together in a physical location, you need to make sure you have a thorough and comprehensive exposure control plan.

First, if you are bringing people back, you need to look at whether you are taking the right steps to keep your workplace as safe as possible. Some questions to consider include:

  • Do you have social distancing protocols in place?
  • Are you requiring that employees wear masks and, if so, are you providing these masks?
  • Are you able to ensure that employees maintain at least 6 feet (and preferably more) between them? If not, have you taken steps to modify your physical space to reduce exposure risk, such as installing plexiglass between cubicles or between your employees and the general public?
  • Are you implementing new cleaning procedures and policies to ensure that the workplace has been thoroughly disinfected?
  • Are you taking other steps to prevent employees from congregating in the breakroom or sharing utensils or other equipment?
  • Have you considered the special needs of employees in high risk groups either because of age or a health condition? You may need to take extra steps to protect these employees, but make sure that in doing so, you’re not violating the Americans with Disabilities Act, the Age Discrimination in Employment Act, and other similar laws and regulations.

You need to consider not only how to prevent employees from being exposed to COVID-19, but also what to do if they do become exposed. OSHA recently released its third iteration of guidance regarding the requirement to record COVID-19 infection at work. Generally, employers must record COVID-19 as a workplace illness when an employee as a confirmed diagnosis of COVID-19 (according to the CDC definition) and that employee contracted the disease at work.

As a practical matter, determining where the employee contracted COVID may be challenging, so when determining if an employer should have recorded the employee’s illness, OSHA will consider the reasonableness of the employer’s investigation into the source of the illness, the evidence available to the employer and various factors that weigh in favor of the employee contracting the illness at work, such as whether other employees had confirmed COVID diagnoses and whether the employee frequently interacts with the general public.

The upshot of OSHA’s guidance is that employers need to have some system of contact tracing in place. This means that you need to have investigatory procedures for determining who the employee had contact with that may have resulted in COVID exposure. Don’t forget to address privacy concerns when performing this investigation, however.

You also need to have a plan in place for dealing with OSHA complaints. Generally employee complaints about an unsafe workplace to OSHA relate to either the standard requiring appropriate PPE (personal protective equipment) or the General Duty Clause of the OSH Act, which requires employers to provide "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." Other standards may also apply to specific situations or workplaces.

OSHA has issued COVID-specific response plan to its field offices regarding inspections to keep CSHOs safe. While OSHA is prioritizing the most serious reports and highest risk work places, inspections are still taking place, so employers should generally plan for an inspection and follow up from OSHA in response to an employee complaint. Your specific industry may also dictate other necessary safety protocols and considerations.

Balancing economic considerations with health and safety risks can be particularly challenging in the era of COVID, and it is important to make sure you have really thought through all of the relevant issues. For help developing a tailored exposure control plan, consider consulting an attorney.

This document is intended to provide you with general information regarding exposure control plans and preparing your business to reopen. The contents of this document are not intended to provide specific legal advice. If you need specific advice, please contact me to discuss your situation.