COVID-19 Updates: Reopening Guidance from the CDC for Employers in Office Buildings and DOL Developments

Reopening Guidance for Employers in Office Buildings

As more offices begin to reopen, the Centers for Disease Control and Prevention (“CDC”) has issued guidance designed to create a safe office environment and protect employees and clients. The CDC’s recently issued guidance, entitled COVID-19 Employer Information for Office Buildings, sets forth a step-by-step guide for office building employers, building owners and managers, and building operations specialists to take in reopening. These specific steps include:

Checking the building to see if it is ready for occupancy before resuming business operations.

This may include checking to ensure that ventilation systems operate properly, increasing circulation of outdoor air, and evaluating the building and its mechanical and life safety systems to determine if the building is ready for occupancy.

Identifying where and how workers may be exposed to COVID-19.

The CDC recommends conducting a thorough hazard assessment to identify workplace hazards that could increase risk for COVID-19 transmissions, as well as identifying work and common areas where employees could be within 6 feet from others.

Developing hazard controls using the Hierarchy of Controls to reduce transmission among workers.

Under the Hierarchy of Controls there are two main types of controls that apply to an office environment – engineering controls and administrative controls. Engineering controls are intended to isolate the employee from the hazard.

The CDC suggests engineering controls such as:

• modifying furniture and workstations to maintain social distance of 6 feet between employees;
• using methods to physically separate employees in all areas of the facilities (e.g., placing tape on the floor to indicate where employees should stand and switching to single use items for high-touch communal items such as coffee pots and bulk snacks);
• improving air circulation and ventilation in the building by increasing the percentage of outdoor air, increasing total air flow, and improving air filtration;
• considering the use of a high-efficiency particulate air (HEPA fan/filtration system and ultraviolet germicidal irradiation; and
• ensuring that exhaust fans in restrooms are functional and operating at full capacity.

Administrative controls are intended to change the way people work and may include:

• conducting daily in-person or virtual health checks (e.g., symptoms and/or temperature screening) of employees before they enter the office;
• staggering shifts, start times and break times to reduce the density of employees in common areas;
• posting signs in parking areas and entrances that ask clients and visitors to wear cloth face coverings, to not enter the building if they are sick, and to stay 6 feet away from employees, if possible;
• cleaning and disinfecting high-touch surfaces on a frequent basis;
• providing employees with disposable wipes and other cleaning materials so that they can wipe down frequently touched surfaces before each use;
• reminding employees to properly wash their hands;
• establishing policies and procedure for social distancing, such as prohibiting handshakes or fist bumps and limiting the number of people in an elevator;
• offering employees incentives to use other forms of transportation other than ride sharing or public transportation; and
• requiring employees to wear cloth face coverings in all areas of the business as a measure to contain the wearer’s respiratory droplets and help protect their co-workers and members of the general public. The CDC clarifies, however, that employees should not wear cloth face coverings at work if they have trouble breathing, any inability to tolerate wearing them, or if they are unable to remove them without assistance.

Educating employees and supervisors.

Employers should communicate these new plans, policies, and procedures to their employees. To assist employers in communicating their specific plans, the CDC has issued a series of Printable Posters for employers to use.

Getting more information when needed.

The CDC has issued several pieces of guidance including the CDC Interim Guidance for Businesses and Employers (COVID-19), and the CDC General Business Frequently Asked Questions In addition, both the Equal Employment Opportunity Commission and the Department of Labor have issued valuable resources concerning the intersection of these recommendations and other employment laws. These resources can be found at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws and COVID-19 and the American Workplace

DOL and OSHA Developments

Similar to the CDC’s more detailed guidance, the DOL’s Occupational Safety and Health Administration (“OSHA”) also recently issued its Alert on Social Distancing to Keep Employees Safe at Work During the Coronavirus Pandemic, which reminds employers that they are responsible for providing safe and healthful workplaces for their employees. OSHA identifies several steps that can help maintain social distancing and decrease workplace exposure. These steps include isolating any worker who begins to exhibit symptoms until they can either go home or leave to seek medical care; establishing flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if feasible; staggering breaks and re-arranging seating in common break areas to maintain physical distance between workers; and encouraging employees to report health and safety concerns.

OSHA also recently adopted its Revised Enforcement Policies for Coronavirus. The revised enforcement policies indicate that OSHA will be performing more on-site inspections. In addition, OSHA revised its previous enforcement policy for recording cases of COVID-19. Now, most employers are responsible for recording cases of COVID-19 if the case:

• Is confirmed as a coronavirus illness;
• Is work-related as defined by 29 CFR 1904.5; and
• Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

While it may remain difficult for an employer to determine whether a COVID-19 case is work-related, OSHA emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of COVID-19 is work-related. In keeping with existing regulations, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations. These employers need only report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.

Finally, the DOL’s Wage and Hour Division published a news release concerning the enforcement of the Families First Coronavirus Response Act (“FFCRA”) stating that the DOL determined that the Georgia Department of Human Services wrongly denied emergency paid sick leave to an employee who needed to miss work to care for a child whose school closed due to the coronavirus, and as such, was required to pay back wages to the employee as required by Emergency Paid Sick Leave Act (“EPSLA”) provisions of the FFCRA The news release can be read at Georgia Department of Human Resources Pays Employee Denied Emergency Sick Leave Allowed by the FFCRA. This is an important reminder of not only an employer’s obligations under the FFCRA, but also that the DOL intends to enforce the employee complaints it may receive.

As always, we encourage you to seek legal advice as questions arise during your business reopening and throughout the COVID-19 pandemic challenges.

THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.  LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.