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Posts Tagged ‘OSHA’

OSHA Issues Guidance On Reopening for Non-Essential Businesses

Posted on: June 24th, 2020

By: Hillary Freesmeier

The Occupational Safety and Health Administration, better known as OSHA, has recently released its Guidance on Returning to Work for those businesses that have been deemed “non-essential” during the COVID-19 pandemic.

The Guidance directs a Three Phase approach to reopening and identifies several categories employers should address in their reopening plans. OSHA continues to encourage employers to consider ways in which to utilize workplace flexibility, such as teleworking, and alternative business operations to provide goods and services to customers, such as curbside pickup.

During Phase 1, employers should consider allowing employees to telework when possible and feasible. For employees returning to the workplace, employers should consider limiting the number of people in the workplace and maintain strict social distancing practices. Flexibilities should also be offered for high risk workers and for those whose household members are considered to be at high risk. Non-essential business travel should be limited.

During Phase 2, employers should continue to make teleworking available where possible, but can allow non-essential business travel to resume. Restrictions on the number of people in the workplace can be eased, but moderate to strict social distancing should be maintained. Employers should also continue to accommodate vulnerable workers as they did in Phase 1.

During Phase 3, businesses may resume unrestricted staffing.

Employers should also develop and implement policies and procedures for preventing, monitoring, and responding to any possible emergence or resurgence of COVID-19 in their workplace or community.

All reopening plans should address:

  • Hazard assessment, which should include practices and procedures to determine when, where, how, and to what sources of COVID-19 employees are likely to be exposed to in the workplace;
  • Hygiene, including practices for hand washing, cleaning, and disinfection;
  • Social distancing;
  • Identification and isolation of sick employees, including employee self-monitoring, screening, and isolation procedures;
  • Returning to work after an employee recovers from COVID-19 or has completed a self-quarantine after exposure to a person with COVID-19;
  • Controls for safe work practices, including providing for personal protective equipment based on your hazard assessment results;
  • Workplace flexibility for teleworking and sick leave;
  • Training to ensure employees know how to identify the signs, symptoms, and risk factors associated with COVID-19 and to prevent the spread in the workplace;
  • Anti-retaliation for those who adhere to guidelines or raise workplace safety concerns.

The Guidance also provides that employers may:

  • Conduct worksite COVID-19 testing if done in a transparent, non-retaliatory manner, and
  • Take worksite temperature checks or other health screenings, such as temperature/symptom screening, self-checks, self-questionnaires, etc.; however, employers should ensure these are conducted in a confidential manner as required by the Americans with Disabilities Act
    • Be aware that if you decide to record these results, these records may qualify as medical records under the Access to Employee Exposure and Medical Records standard, which would require employers to retain the results for 30 years and follow confidentiality standards. However, employers may take employee temperature in real time and forgo maintaining records of the results.

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

OSHA Issues Updated Guidance On When Employers Must Record COVID-19 Cases

Posted on: June 8th, 2020

By: Elizabeth Fellmeth

In OSHA’s original guidance from April 2020, the agency acknowledged the difficulty in determining whether a COVID-19 case was “work-related” due to possible employee infections from outside the workplace.  Most employers did not have a reporting obligation unless the employer had “objective evidence” that the COVID-19 case was work-related.  Under the new guidance set forth below, OSHA confirms COVID-19 is a recordable illness, and all employers – including non-health care employers – are expected to investigate COVID-19 cases and make a determination of work-relatedness.

OSHA’s COVID Recordability Test

A COVID-19 case must be recorded if:

  1. The case is a confirmed case of COVID-19 as defined by the Center for Disease Control and Prevention (CDC)[1]
  2. The case is work-related; and
  3. The case results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.

If the employee meets these three requirements, the COVID-19 case should be recorded on the employer’s OSHA 300 log.  A COVID-19 case should also be coded as a respiratory illness.  In accordance with existing regulations, the only employers that are exempt from maintaining such records are those with 10 or fewer employees or certain low-risk industries.[2]

The key issue for an employer in assessing a COVID-19 case is determining whether it is “work-related.” OSHA’s new guidance indicates it will consider the following factors in determining whether an employer has made a reasonable determination on this issue:

  1. The reasonableness of the employer’s investigation into work-relatedness. 

Under this new standard, it would be reasonable for an employer to engage in the following steps upon learning of the employee’s COVID-19 illness:

  • Ask the employee how he or she believes the virus was contracted;
  • Discuss with the employee activities at work and outside of work that may have led to the illness; and
  • Review the employee’s work environment for potential exposure.

OSHA also notes that “due weight” should be given to the opinion of a medical provider or a public health authority in making a determination.  With that said, the employer is not expected to undertake extensive medical inquires.

  1. The evidence available to the employer.

This will include the information reasonably available to the employer at the time it made the decision about work-relatedness.  However, it can be changed later when the employer learns additional information that may impact the determination.

  1. The evidence that a COVID-19 illness was contracted at work.

The new guidance outlines some evidence that weigh in favor or against work-relatedness:

  • Evidence that may weigh in favor of work-relatedness includes:
    • Several cases developing among workers who work closely together and there is not an alternative explanation; and
    • An employee testing positive shortly after lengthy, close exposure to a customer or coworker who has a confirmed case and there is not an alternative explanation.
  • Evidence that may weigh against work-relatedness includes:
    • A worker who tests positive is the only worker in his or her vicinity to contract the virus and his or her job duties do not involve frequent contact with the public; and
    • A worker who contracts COVID-19 has close contact with a family member or close friend who is not a coworker who has the virus.

In summary, it is imperative that employers conduct a reasonable and objective evaluation for work-relatedness when assessing COVID-19 cases in the workplace.


[1] The CDC defines a confirmed case as an individual who tests positive for SARS-CoV-2, the virus that causes COVID-19.

[2] https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904SubpartBAppA

Can I Take Your Order Please? OSHA Releases COVID-19 Guidance for Restaurants Offering Takeout or Curbside Pickup

Posted on: May 8th, 2020

By: Travis Cashbaugh

The COVID-19 pandemic has impacted all industries across the country, perhaps none greater than the restaurant, food and beverage industry. Faced with widespread closures, many retailers in the food and beverage industry modified their business models for the new post-crisis world to include in-store takeout and curbside pickup. Each method of delivery offers convenient, quality, fresh products for the consumer. More importantly, both offer minimal-touch pick-up options consistent with the “socially-distanced” goals of COVID-19 prevention for all involved—customers and employees.

To maintain the safety of such services on both customers and employees in the restaurant, food and beverage industries, the Occupational Safety and Health Administration (OSHA) has issued guidance for restaurants and beverage vendors offering takeout or curbside pickup. Through its May 1, 2020 safety alert publication, OSHA identified the following tips to help reduce the risk of exposure to the coronavirus:

  • Encourage workers to stay home if they are sick.
  • Avoid direct hand-off, when possible.
  • Display a door or sidewalk sign with the services available (e.g., take-out, curbside), instructions for pickup, and hours of operation.
  • Reserve parking spaces near the front door for curbside pickup only.
  • Train workers in proper hygiene practices and the use of workplace controls.
  • Allow workers to wear masks over their nose and mouth to prevent spread of the virus.
  • Provide a place to wash hands and alcohol-based hand rubs containing at least 60% alcohol.
  • Routinely clean and disinfect surfaces and equipment with Environmental Protection Agency approved cleaning chemicals or that have label claims against the coronavirus.
  • Practice sensible social distancing by maintaining six feet between co-workers and customers. Mark six-foot distances with floor tape in pickup lines, encourage customers to pay ahead of time by phone or online, temporarily move workstations to create more distance, and install plexiglass partitions, if feasible.
  • Encourage workers to report any safety and health concerns.

In addition to remaining alert for further guidance from OSHA, employers in the restaurant, food, and beverage industries should be aware of specific guidance from state and local governments, as states across the county begin preparations to reopen. In Georgia for example, Governor Brian Kemp recently issued an Executive Order that provides new and extensive guidance for businesses across Georgia, including restaurants. FMG provided a detailed overview of that Executive Order and its impact on businesses, here.

With new habits and behaviors forming, those in the food and beverage industry that fail to pivot will likely find themselves struggling to compete. Employers that are planning on reopening—or continuing to operate, perhaps modifying their business model to include takeout or curbside pickup—should immediately begin assessing the health and safety protocols they have in place now and what additional steps they need to take consistent with OSHA’s guidance and state and local requirements.  Further, we recommend that employers consult with their counsel to evaluate any industry or location-specific measures that should be taken to reduce any concerns by customers or employees of contracting COVID-19 when on the employer’s establishment. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include real estate issues, business interruption losses, and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

COVID-19: What Medical Inquiries Can Employers Make?

Posted on: March 16th, 2020

By: Jennifer Markowski

Last week, Brad Adler, addressed FAQ’s (and Answers) for Employers Dealing with the Coronavirus, COVID-19. Subsequent to that article, on March 11, 2020, the World Health Organization (“WHO”) declared COVID-19 a pandemic. Consequently, employers should follow the Equal Employment Opportunity Commission’s (“EEOC”) pandemic guidance “Pandemic Preparedness in the Workplace and the ADA,” which details what medical inquiries and testing are permissible in the workplace in light of the existing pandemic.

The Americans with Disabilities Act (“ADA”) prohibits employers from making disability-related inquiries and/or requiring employees to submit to medical examinations unless they are job-related and consistent with business necessity.  Now that COVID-19 has been declared a pandemic, according to the EEOC guidance, employers can do the following without running afoul of the ADA:

  • Send employees home who are exhibiting COVID-19 symptoms;
  • Ask employees who call-in sick whether they are experiencing fever or chills and a cough or sore throat (symptoms of COVID-19);
  • Measure employee temperatures, if COVID-19 is widespread in the community as defined by state or local health ordinances or the CDC;
  • Ask where employees have traveled;
  • Ask why employees have not reported to work (this is always permissible);
  • Implement measures to prevent infection, such as wearing masks or requiring teleworking.

As always, information obtained about an employee’s medical illness must be kept confidential and separate from the employee’s personnel file and can only be shared with individuals on a need to know basis.  Additionally, if an employee receives ADA accommodations in the workplace and is then required to telework, those same accommodations should be provided for in the telework space, unless doing so would create an undue hardship.

The Occupational Safety and Health Organization (“OSHA”) has also issued guidance for pandemic preparedness. Those guidelines are accessible here.

In addition, FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

OSHA Issues Guidance on the Usage of Headphones on Construction Sites

Posted on: February 13th, 2020

By: Erin Lamb

In late 2019, OSHA released a letter of interpretation in response to employers’ questions regarding the rapidly increasing use of headphones on construction sites. The convenience, simplicity, and decrease in price of wireless headphones have made them wildly popular. Manufacturers and advertisers have taken advantage of that popularity to advertise wireless headphones as having features appealing to workers, such as volume-limiting capabilities and noise-canceling capabilities, and even promoted them as ear protection devices. These products, however, also have the ability to play music, podcasts, videos – anything that can be watched or listened to via a Bluetooth device.

To better appeal to workers, some manufacturers have gone as far as to advertise their products as “OSHA approved”. Employers subsequently sought clarification and guidance on whether use of headphones on job sites is prohibited by OSHA regulations.

In its response, OSHA noted there is no regulation that prohibits the use of headphones on a construction site. Employers are required by 29 CFR 1926.52 to provide employees subject to sound levels exceeding these limits with ear protective devices. No noise exposure can exceed those limits.

However, OSHA did not end its answer there. OSHA noted that while headphone usage may be “permissible at managerial discretion,” such usage may “create” or “augment” other hazards, and provided specific examples of anticipated hazards. The letter of interpretation noted that struck-by hazards are one of the four leading causes of death in construction. Employers are responsible for ensuring that employees are not exposed to struck-by hazards. OSHA cautioned that listening to music can mask environmental sounds that need to be heard, including sounds of equipment and machinery at use and in movement, vehicle traffic, and warning signals. OSHA further noted that the body does not register, certify, approve, or endorse any products, and there are no “OSHA approved” products of any kind.

Employers must be keenly aware that employee exposure to potential hazards is heightened by distraction and/or dulling of the senses (like music headphones or even noise-regulating/canceling headphones) and must regulate usage accordingly. Employers will be liable for a violation of the general duty clause if headphones-wearing employees are exposed to the hazards outlined in the letter. Employers should evaluate their worksites and consider whether issuing a policy that bans headphone usage is appropriate.

If you have any questions or would like more information, please contact Erin Lamb at [email protected].