COVID-19 REOPENING – CDC & CONNECTICUT
HOW SHOULD COMPANIES INTERPRET THE GUIDANCE?
THE GUIDELINES ISSUED BY CDC INCLUDE THE FOLLOWING:
Develop and implement appropriate policies in accordance with Federal, State, and local regulations and guidance, and informed by industry best practices regarding:
• Social distancing and protective equipment
• Temperature checks
• Use and disinfection of common and high-traffic areas
• Business travel
• Monitor workforce for indicative symptoms. Do not allow symptomatic people to physically return to work until cleared by a medical provider
• Develop and implement policies and procedures for workforce contact tracing following employee COVID-19 positive test
• Continue to encourage telework whenever possible and feasible with operations
• If possible, return to work in phases
• Close common areas where personnel are likely to congregate and interact or enforce strict social distancing protocols
• Minimize non-essential travel and adhere to CDC guidelines regarding isolation following travel
• Strongly consider special accommodations for personnel who are members of a vulnerable population
CDC furtherstated: “These guidelines should be used in conjunction with the state and local guidelines or
orders issued for your jurisdiction.”
The Connecticut document, GUIDANCE FOR BUSINESSES IN THE CONSTRUCTION INDUSTRY PERMITTED
TO OPERATE DURING THE COVID-19 DISASTER EMERGENCY, states that: “All construction businesses authorized to conduct in-person operations in the Commonwealth must adhere to requirements of this guidance [emphasis added], as well as all applicable business and building safety
orders issued by the Secretary of Health.”
THE CONNECTICUT KEY COMPONENTS FOR EMPLOYERS INCLUDE:
• Identify a “Pandemic Safety Officer” for each project or worksite or, if overseeing a large-scale construction project, identify a Pandemic Safety Officer for each contractor at the site. The primary responsibility of the Pandemic Safety Officer will be to convey, implement, and enforce the social distancing and other requirements of this guidance for the protection of employees, suppliers, and other personnel at the site
• Follow all applicable provisions of the Order of the Secretary of Health providing for business safety measures, issued April 15, 2020, including but not limited to provisions requiring that every person present at a worksite wear masks/face coverings, and provisions requiring the establishment of protocols for execution upon discovery that the business has been exposed to a person who is a probable or confirmed case of COVID-19
• Follow all applicable provisions of the Order of the Secretary of Health providing for building safety measures, issued April 5, 2020
• Follow other applicable Department of Health (DOH) and Centers for Disease Control and Prevention (CDC) guidance
• Require social distancing (6-foot minimum distance between workers) unless the safety of the public or workers require deviation (e.g. drywalling, team lifting)
• Provide hand wash stations at appropriate locations on the site such as building entrances, break areas, food truck areas, offices, trailers, and job site egress areas
• Implement cleaning or sanitizing protocols at all construction sites and projects. Identify and regularly clean and disinfect areas that are at high risk for transmission (requirements are to clean common areas and regularly trafficked spaces periodically)
• Ensure all gatherings are limited to no more than 10 people, maintaining 6-foot social distancing, when required to meet, even when conducted outside
• Use virtual meetings and disseminate information electronically to the extent feasible
• Stagger shifts, breaks, work areas and/or stacking of trades where feasible to minimize workers on site
• Limit tool sharing and sanitize tools if they must be shared
• Employ jobsite screening based on CDC guidance to determine if employees should work. Prohibit any employees with any symptoms of COVID-19 from working. Encourage sick employees to stay home
• Prohibit unnecessary visitors to any project or worksite and limit supplier deliveries
• Limit access to enclosed spaces to the extent feasible
• Ensure workers are traveling to and from the jobsite separately. Wherever possible, employees should not share a vehicle.
• Note the requirement to name a Pandemic Safety Officer who would be in charge of carrying out the COVID-19 safety procedures set forth in the guidance document. No roles or responsibilities were provided, however, JLN has developed an appropriate set of specific roles and responsibilities which will meet the intent of the Connecticut requirements.
The Connecticut Secretary of Health issued requirements including the following regarding temperature checking of employees:
• Implement temperature screening before an employee enters the business, prior to the start of each shift or, for employees who do not work shifts, before the employee starts work, and send employees home that have an elevated temperature or fever of 100.4 degrees Fahrenheit or higher. Ensure employees practice social distancing while waiting to have temperatures screened.
This requirement for temperature screening is in alignment with the CDC guidelines issued on April 16 by the White House.
As to whether guidance documents issued by the CDC are requirements, i.e. mandatory, there is room for some debate. It appears that the CDC issued their plans as guidance to the states, to be considered in development of their plans. However, in the absence of state plans, what is the duty of employers to implement the CDC-issued guidance?
The CDC reopening document is not in and of itself a regulation in the usual sense. It can be inferred that it was not issued as a regulation since the process of promulgating and putting into effect a law would have required considerable debate and a lengthy process, which in the face of this crisis would not have been productive. In fact, there has been some push by members of Congress to establish emergency regulations, however, none have been successful to date.
Beyond CDC and state guidance, OSHA and the legal system may play a role in determining what obligations employers face in protecting their workers from contracting COVID-19.
OSHA’S GENERAL DUTY CLAUSE
Enforcement of worker protection standards for private industry companies falls to the Occupational
Health & Safety Administration (OSHA). Without a specific legal standard on which to compel employers
to take actions to protect employees who have the potential for exposure to the coronavirus, what
enforcement actions can OSHA take?
There are a number of standards which could be applied as it relates to COVID-19:
• General Duty Clause (Section 5(a)(1) of OSH Act)
• 29 CFR 1910.132 (General PPE)
• 29 CFR 1910.133 (Eye/Face)
• 29 CFR 1910.134 (Respiratory Protection)
• 29 CFR 1910.138 (Hand Protection)
• 29 CFR 1910.141 (Sanitation)
• 29 CFR 1910.1020 (Medical Records Access)
• 29 CFR 1910.1030 (Bloodborne Pathogens)
• 29 CFR 1910.1200 (HazCom standard, related to use of hazardous chemicals for cleaning
and disinfection, including common sanitizers and sterilizers)
• 29 CFR 1910.1904 (Recordkeeping and Injury/Illness Reporting) – includes severe injury
reporting requirements with mandated $5000+ penalty and also whistleblower protections
• Section 5(a)(1) of the Act (General Duty Clause – GDC) requires that “Each employer shall
furnish to each of his employees employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or serious physical harm
to his employees.”