a workplace safety re- opening guide for south carolina
TRANSCRIPT
Kyle Dillard (Greenville, SC)
Michael McKnight (Raleigh, NC)
Presented by:
A Workplace Safety Re-Opening Guide for South Carolina Employers
Overview
• Steps employers can take to comply with constantly evolving governmental safety and health recommendations.• OSHA requirements impacting the use of face coverings, surgical masks, respirators, and PPE in the workplace.
•Responding to employee questions, concerns, and complaints about Personal Protective Equipment and workplace conditions.
• Employee screening and proper handling of suspected and confirmed cases of COVID-19.
South Carolina Executive Orders
• 3-13-20: Declaration of State of Emergency
• 3-17-20: Restaurant Closures
• 3-31-20: Closure of Certain Non-Essential Businesses• Entertainment, sports/recreation, close contact (salons, barbers)
• 4-3-20: Additional Closures• Non-essential retail (basically all but grocery, pharmacy, hardware, & big-box)
• 4-20-20: EO # 2020-28; Modification of Business Restrictions• Re-open retail subject to occupancy restrictions (5/1000 or 20%)
• 5-3-20: Outdoor Dining Permitted
AccelerateSC
•Associated actions to date:
•Website: accelerate.sc.gov
• SCDHEC Restaurant Re-opening Toolkit
•USC-Columbia to resume in person instruction mid-August
Relevant OSHA Requirements• There is no specific OSHA standard or regulation that requires
employers to do anything regarding COVID-19.
• SC General Duty Clause: “Employers shall maintain a place of employment which is free of recognized hazards which may cause death or serious physical harm to his employees.”• Duty to provide “basic workplace hazard education about coronavirus and how
to prevent transmission.”
• OSHA Respiratory Protection Standard (29.C.F.R. 1910.134): Employer must provide appropriate respirators to employees exposed to “occupational diseases” caused by breathing contaminated air.
• OSHA PPE Standard (29 C.F.R. 1910.132): PPE provided by employers or employees must be maintained in a sanitary and reliable condition.
Consider Your Exposure Risk Category
Lower Risk
High
Medium
Very High
• No contact with people known to be, or suspected of being, infected.
• Minimal contact with public and coworkers.
• High potential for exposure to known or suspected sources of virus.
• Healthcare, medical, and mortuary workers.
• Frequent/close contact with people who may, but are not known to be, infected.
• Contact with general public and/or those who travel, i.e. schools, retail, meat/poultry, etc.
• High potential for exposure to known or suspected sources of virus in performing job tasks.
• Healthcare or mortuary workers with direct contact with infected individuals.
OSHA’s Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus
• 1. Encourage workers to stay home if sick.
• 2. Encourage respiratory etiquette, including covering coughs and sneezes.
• 3. Provide a place to wash hands or alcohol-based hand rubs containing at least 60% alcohol.
• 4. Limit worksite access to only essential workers, if possible.
• 5. Establish flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if feasible.
OSHA’s Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus
• 6. Discourage workers from using other workers’ phones, desks, or other work tools and equipment.
• 7. Regularly clean and disinfect surfaces, equipment, and other elements of the work environment.
• 8. Use Environmental Protection Agency (EPA)-approved cleaning chemicals with label claims against the coronavirus.
• 9. Follow the manufacturer’s instructions for use of all cleaning and disinfection products.
• 10. Encourage workers to report any safety and health concerns.
Additional Business/Worksite Specific Social Distancing Options
• Consider implementing additional engineering and administrative controls to allow for social distancing within the workplace:• Ensure employees keep at least six feet away from co-workers and the public
and use or provide markings in the workplace to facilitate this.• Designate one or more employees to monitor compliance with this directive?
• Avoid lines or crowds at screening, time clock, and break and meal areas by staggering schedules and setting occupancy limits.
• Install physical barriers between employees and customers where social distancing not feasible or possible (e.g. retail, conveyors, etc.).
• Implement flexible meeting and travel options; when group meetings necessary, considering holding outside where social distancing is easier.
• Have workers take separate vehicles when passenger space in vans, trucks, or other types of company provided transport is not possible.
Provide and Allow Use of PPE and Other Supplies
• Ensure adequate supplies of PPE (where necessary) and non-PPE items to prevent spread of the virus such as:• In non-healthcare settings, non-medical masks and face coverings
• Disposable (or washable) gloves
• Disinfectant spray
• Disinfectant wipes
• Spray bottles
• Hand soap and sanitizer
• Eye/face protection
• Other protective measures as recommended by safety or occupational medicine specialists.
• Keep Safety Data Sheets (SDSs) for all disinfectants on site, do not mix chemicals, and dilute and use chemicals according to manufacturer specifications.
Face Covering v. Surgical Face Mask
Face Covering/Cloth or Paper Face Mask
Surgical Face Mask
• Loose fitting/Not PPE
• Not regulated by OSHA/no fit-testing
• Prevents transmission of virus between people in close proximity
• Use in public settings where social distancing infeasible (grocery store)
• Loose fitting/Not PPE outside of healthcare
• Not regulated by OSHA outside of healthcare/no fit-testing
• Protects wearer from large droplets, splashes, or sprays of bodily fluids
• Use in healthcare workers if no N95s and patients with suspected and confirmed virus
Surgical Face Mask v. Filtering FacepieceRespirator
Surgical Face Mask Filtering Facepiece (N95) Respirator
• Loose fitting/Not PPE outside of healthcare
• Not regulated by OSHA outside of healthcare/no fit-testing
• Protects wearer from large droplets, splashes, or sprays of bodily fluids
• Use for healthcare workers if no N95s and patients with suspected and confirmed virus
• Tight fitting/PPE unless employee-provided
• Regulated by OSHA/fit-testing and respiratory program if use required/Appendix D if voluntary
• Reduces exposure to aerosols and large droplets
• Use for healthcare workers caring for patients with suspected and confirmed virus
Responding to Employee Questions and Complaints
• Unlawful to take any adverse action in response to exercise of rights (OSH Act 11(c))
• Definition of “adverse action” and “exercise of rights” can be expansive
• Circumstantial
• Enforcement by SCOSHA
• Triggered by employee complaint (online so very little effort required)
• Notice of complaint and request for documents/position statement
• SCOSHA may sue on behalf of employee
Responding to Employee Questions and Complaints
• COVID-19 Fear Based Refusals
• Employees may refuse to encounter dangerous condition
• Refusal protected if:
• Immediate threat of serious harm;
• Perception of threat is in good faith and objectively reasonable;
• Employer refuses to correct hazard after request;
• Inadequate time to involve OSHA.
• Generalized or speculative fear is probably not sufficient
• See also, Bloomberg report re SCDEW
• If in doubt, offer employee call to OSHA
Employee Screening and Temperature Check Protocols
• The EEOC permits and many state and local re-opening protocols (including SC OSHA) recommend that employees, contractors, suppliers, customers, and visitors entering the worksite be screened using a standardized, brief questionnaire and temperature screening where appropriate.• In addition to daily screenings, consider requiring all recalled employees to
complete a questionnaire regarding potential exposure.
• Key is to ensure that all employees/applicants are treated similarly.
• Employer permitted to keep a log so long as confidentiality of information is maintained.
• No guidance yet on whether requiring tests for COVID-19 are permissible under ADA or other applicable laws.
Employee Screening and Temperature Check Protocols
• CDC has released guidance to employers on protocols for temperature screening with three possible approaches:• Social Distancing Approach
• Employees take their own temperatures before work or upon arrival.
• Person conducting the screening upon the employee’s arrival stays at least six feet away, questions employee, and conducts visual observation.
• Under this approach, the CDC states that screening personnel “do not need to wear personal protective equipment (PPE) if they can maintain a distance of 6 feet.”
• Barrier/Partition Controls• Screener would wash hands upon arrival and “stand behind a physical barrier, such as a
glass or plastic window or partition, that can protect the screener’s face and mucous membranes from respiratory droplets that may be produced when the employee sneezes, coughs, or talks.”
• Screener would “[m]ake a visual inspection of the employee for signs of illness” and check the employee’s temperature with a thermometer.
Employee Screening and Temperature Check Protocols
• Steps for using a thermometer to check employee temperature:• Put on disposable gloves;
• Reach around the partition (or through a hole in the partition) to use the thermometer but while keeping the screener’s face behind the partition at all times;
• Use a clean pair of gloves between each employee unless the screener is using a disposable or non-contact thermometer and did not have physical contact with the employee;
• Clean and disinfect thermometers in accordance with manufacturing instructions and any facility policies; and
• Remove and discard all PPE (e.g., gloves) and wash hands with soap and water for at least 20 seconds (or use a hand sanitizer with at least 60 percent alcohol).
Employee Screening and Temperature Check Protocols
• PPE• Screeners visually inspect employees and measure their temperatures using the
same procedures as outlined in the barrier/partition approach above, except wearing additional PPE for each screening.
• CDC advises the screener to “put on a facemask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), and a single pair of disposable gloves.”
• A “gown could be considered if extensive contact with an employee is anticipated.”
• PPE should be removed and discarded after each screening, and screeners then should wash their hands for at least 20 seconds with soap and water (or use a hand sanitizer with at least 60 percent alcohol).
• Consider applicable guidance from state and local health authorities
Handling Suspected and Confirmed Cases of COVID-19
• Require workers to stay home or go home if they feel or appear sick.
• Identify and isolate workers who exhibit signs or symptoms of COVID-19.
• Refer to CDC symptoms list (frequently updated): https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html
• Follow CDC deep-cleaning and disinfection guidance after reports of employee with suspected or confirmed COVID-19: https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html
• Keep workers away from areas being deep cleaned.
Recording Requirements
• Recordkeeping standard (29 C.F.R. 1904) requires employers to record work-related injuries and illnesses that result in days away from work, a job transfer, or medical treatment beyond first aid.
• Illness is work-related if it is more likely than not that a factor or exposure in the workplace caused or contributed to the illness.
• Unlike common cold or flu, COVID-19 is recordable where an employee is infected on the job.
• Non-healthcare employees need to record instances of a single infected employee and no evidence of work-relatedness.
Reporting Requirements
• Only required to report positive COVID-19 tests where employee is hospitalized as an in-patient or dies and the illness is work-related (e.g. contracted on the job or while on business travel).
• In-patient hospitalization must be reported within 24 hours.
• Death must be reported to OSHA if it occurred within 30 days of the work-related incident where employee contracted the virus.
https://ogletree.com/solutions/coronavirus-covid-19-resource-center/
Questions?
Thank you!
Kyle Dillard
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
The Ogletree Building
300 North Main Street, Suite 500
Greenville, SC 29601
Phone: (864) 240-8317
Michael McKnight
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
8529 Six Forks Road, Forum IV, Suite 600
Raleigh, NC 27615
Phone: (919) 789-3159
Kyle Dillard (Greenville, SC)
Michael McKnight (Raleigh, NC)
Presented by:
A Workplace Safety Re-Opening Guide for South Carolina Employers