By Conn Maciel Carey’s COVID-19 Task Force
As states across the country begin to loosen or lift stay-at-home and shutdown orders, many workplaces that had been idled, have just begun to or will soon resume operations. Many states and localities are setting as a precondition for reopening, a requirement that they develop and implement a written, site-specific COVID-19 Exposure Control and Response Plan.
Regardless of any state or local requirement to develop such a plan, any business that operates without an Exposure Control Plan will be potentially exposed to a number of legal or business risks, such as an OSHA citation, being shutdown by a state or local health department, and/or becoming a target for a wrongful death action brought by families of employees, temporary workers, customers, vendors and/or guests. They should also plan to deal with a workforce that is scared and anxious about the company’s response to the COVID-19 pandemic, which may result in employees refusing to work (which would disrupt and complicate scheduling) and/or making regular and frequent complaints to OSHA about the purported unchecked hazard in your workplace. Responding to these complaints will take time and cost money, distracting your business from its mission. Retaliation claims under Section 11(c) of the OSH Act is another foreseeable consequence of a scared workforce. Without an Exposure Control Plan in place, the legal vulnerabilities will be real and are potentially significant.
We focus below on five key reasons employers must develop a written COVID-19 Exposure Control and Response Plan. But first, what is an exposure control plan?
What is an Exposure Control and Response Plan?
When OSHA identifies a serious safety or health hazard, it usually requires employers to develop a written program including the measures employers will take to counteract the hazard. For example, OSHA requires written lockout/tagout programs to protect against hazardous energy; respiratory protection programs and process safety management programs to protect against hazardous chemical exposures; and emergency action plans to protect against the risk of fires in the workpalce. Simply put, a COVID-19 Exposure Control Plan is a written safety plan outlining how your workplace will prevent the spread of COVID-19, covering issues such as:
- How you will facilitate social distancing in your workplace;
- What engineering or administrative controls you will implement when workers cannot remain at least 6′ apart;
- The steps that you will take to ensure employees comply with personal hygiene practices;
- What types of protective equipment you will provide for various tasks and operations;
- What enhanced housekeeping protocols will be implemented for frequently touched surfaces, tools, and machines;
- What you are doing to prevent/screen sick workers from entering the workplace;
- How you will respond to confirmed or suspected cases among your workforce; and
- How you will communicate with and train your workforce on these mitigation measures.
Five Reasons to Develop a Written COVID-19 Exposure Control Plan
First, whether you have remained open because you are an essential business or plan to reopen soon, you may soon find yourself required to adopt such a plan by virtue of an executive order issued by the governor of a state in which you operate, or in some cases, pursuant to orders issued by city or county officials. Continue reading