Return to Work FAQs from ASEApril 28, 2020
Should my employees be wearing Personal Protective Equipment (PPE) and if so, which, and how should they be deployed?
The employer is required to provide masking, and the employer’s policy should require employees to wear it while at work. Failure to wear it (as would other protective safety equipment) would result in disciplinary action by the employer. Examples of PPE include: gloves, goggles, face shields, face masks, and respiratory protection, when appropriate. Employers are always obligated under the Occupational Safety and Health Act (OSHA) and similar state laws to provide their workers with any PPE needed to keep them safe while performing their jobs. The types of PPE required during a COVID-19 outbreak will be based on the risk of being infected or spreading the virus if they are a carrier while working as well as job tasks that may lead to exposure. Employers who fail to provide PPE may be leaving a door open for liability for not enforcing their safety policies properly.
What is a “mask,” and what is a “face covering”?
In interpreting these orders, it is important to distinguish between different types of masks and face coverings. A mask is usually defined in workspaces as either (i) a filtering respirator such as an N95 or K95 or (ii) a specialized medical-grade or surgical mask. Given continuing shortages and supply challenges, both types of masks should generally be reserved for health care providers, first responders, and essential workers who need to fulfill task-specific OSHA and workplace safety requirements related to respiratory protection. As manufacturing ramps up, surgical masks may become more easily obtainable by employers in large quantities, and they typically would meet the requirements of the various orders that have issued to date, but priority should be given to the health care and first responder systems.
In contrast, a face covering is a cloth, bandana, or other type of material that covers an employee’s mouth and nose. The CDC lists five criteria for “cloth face coverings,” which should:
- Fit snugly but comfortably against the side of the face
- Be secured with ties or ear loops
- Include multiple layers of fabric
- Allow for breathing without restriction
- Be able to be laundered and machine-dried without damage or change to shape
Other types of improvised coverings, such as a scarf or single cloth layer that does not meet the above criteria, would not be adequate under most orders mandating face covering. Single-use paper-based face coverings may be an option, but their effectiveness varies and the CDC has not issued any specific recommendations with regard to their use. Other types of specialty or industrial coverings (e.g., barrier full-face shields) should be reserved for their normal uses, and employers are not expected to make these available to workers who would not regularly be using them.
If I decide to do temperature checks, what is the best way to do them?
Employers who are considering engaging in temperature checks need to carefully think through all the potential issues and risks. First, only someone with proper training and personal protective equipment should be taking the temperature of other people. The method and accuracy of the thermometer should be considered. For example, there have been reports in the general media that temperature scanning guns have accuracy issues. Second, the person taking the temperature must have appropriate personal protective equipment so that they are properly protected. Third, necessary hygiene and sanitation procedures must be followed so as not to cause an inadvertent spread of COVID-19 or any other disease. To the extent an employer has an on-site medical staff person, that person may be most appropriate to designate for conducting temperature checks.
What if we have an employee on temporary layoff who doesn’t want to come back when recalled?
Your organization should send a recall notice to the employee indicating they are required to return and when, why that employee is needed, and the mitigation measures you are doing. If the employee refuses to come back, you may protest unemployment benefits with MiWAM. Be prepared to provide documentation.
How do I help my employees deal with the school closures?
Gov. Whitmer announced the closure of all Michigan K-12 schools for the remainder of the school year. Employers should coordinate leave policies and remember above how to pay employees if they work while at home.
Do I have to record COVID-19 infections for OSHA purposes that arise in the workplace?
OSHA’s interim guidance makes clear that, outside of certain settings where work-related exposures are more likely, employers will only be required to record COVID-19 infections in limited circumstances. Specifically, the guidance states that while “[e]mployers of workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904. OSHA will not enforce 29 CFR § 1904 to require other employers to make the same work-relatedness determinations” except where there is “objective evidence” that a COVID-19 case may be work-related and “the evidence was reasonably available” to the employer. As an example of “objective evidence,” the guidance alludes to an outbreak amongst workers who work closely together without an alternative explanation.
View all FAQs here. If you have further questions, the ASE hotline is available at 248-223-8012