Michelle S. Strowhiro Lindsay Ditlow April 29 2020 Open for business: how 'essential' businesses can keep their workplace healthy and safe McDermott Will & Emery | Employment & Immigration - USA Michelle S. Strowhiro, Lindsay Ditlow Employment & Immigration IntroductionOSHA adviceSteps that employers should takeIntroductionMost states have issued some form of 'shelter in place' or 'stay at home' order to flatten the curve of COVID-19.(1) As a result, many business operations have been temporarily suspended, unless the business is engaged in essential or critical infrastructure functions or supports businesses engaged in such functions.For businesses that are considered 'essential' and have employees still reporting to work, what steps can employers take to keep their workplace healthy and safe?OSHA adviceThe Occupational Safety and Health Administration (OSHA) advises that the Occupational Safety and Health Act (OSHA Act) requirements may apply to preventing occupational exposure to COVID-19, including OSHA's personal protective equipment (PPE) standards (which require workplace modifications, as well as the use of gloves, eye and face protection and respiratory protection in certain situations) and the General Duty Clause (which requires employers to furnish "employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious harm to… employees"). Employers could face fines under the OSHA Act if they do not take affirmative steps to protect their workers.On 13 April 2020 OSHA issued guidance requiring its inspection officers to prioritise on-site inspections of workplaces with "high potential" for exposure (eg, healthcare organisations and first responders) and complaints of fatalities or "imminent danger exposures" relating to COVID-19 (although considerations should be maintained for phone or video-based inspections). All other formal complaints in low or medium-risk settings will generally not result in on-site inspections during the pandemic, and informal complaints relating to COVID-19 exposure will be investigated through informal proceedings to expedite employers' attention to alleged hazards.Steps that employers should takeEmployers should take proactive steps to limit on-site workers to essential personnel who cannot complete their work remotely. Steps employers should take to reduce their workers' risk of exposure to the virus include the following:developing an infectious disease response plan (if one does not exist already);implementing basic infection prevention measures;developing policies and procedures for prompt identification and isolation of sick people, if appropriate;developing, implementing and communicating workplace flexibilities and protections;implementing workplace controls, including social distancing; andfollowing existing OSHA standards.In addition, the Centres for Disease Control and Prevention (CDC) recommends that employers explore whether they can establish flexible work hours, such as staggered shifts, to increase the physical distance among employees and between employees and others. The CDC recommends that all members of the public wear non-medical-grade face coverings to avoid potentially infecting others, even if they have no symptoms. Some municipalities, such as Los Angeles County and Miami-Dade County, have ordered all employers to provide employees with (or reimburse employees for) non-medical-grade face coverings, from cloth masks to handkerchiefs and scarves, if workers are unable to remain a safe distance from each other or the public.Employers also should discourage any non-essential business-related travel. Sales and marketing staff should be trained in engaging potential customers by email, phone and video. For employees who must report to work, certain protections can be used to prevent transmission of illness and assuage fears of transmission, such as:enforcing social distancing;practising good hygiene;using paper towels or other barriers to open and close doors;providing hand sanitising stations; andincreasing environmental cleaning and sanitation procedures.Employers should review CDC and OSHA strategies for minimising the potential exposure risk for all employees. Employers should also consult state and local orders governing essential businesses for any additional requirements.For further information on this topic please contact Michelle Strowhiro or Lindsay Ditlow at McDermott Will & Emery by telephone (+1 312 372 2000) or email ([email protected] or [email protected]).The McDermott Will & Emery website can be accessed at www.mwe.com.Endnotes(1) For further information please see here.Carole Spink, partner, assisted in the preparation of this article.