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By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On April 16, 2020, OSHA released an “alert” with “safety tips” that manufacturing employers “can follow to help protect manufacturing workers from.” (“Manufacturers Alert”) (emphasis added). Although the “alert” is not a regulation which OSHA can directly enforce, OSHA may attempt to use an alert as a basis for imposing liability on employers under the OSH Act’s General Duty Clause. In any case, employers should expect that OSHA compliance officers will use the Manufacturers Alert to evaluate enforcement options in response to employee complaints about coronavirus exposure in the workplace. In addition, employees may view the Manufacturers Alert as a checklist to evaluate their workplaces and for complaints to OSHA and their employers. The full list of OSHA’s “tips” are provided at the end of this article.
OSHA’s Manufacturers Alert was issued on the same day that the White House issued its guidelines for “Opening Up America Again” (“the Guidelines”). The Guidelines include recommendations specifically targeted to employers prior to a State or region reopening for business. Notably, OSHA’s Manufacturers Alert did not include several precautions or directions to employers that were listed in the Guidelines, including directions to employers to conduct symptom monitoring, temperature checks, and contact tracing, and to obtain clearance by a medical provider before a symptomatic worker can return to the workplace.
According to the Guidelines, all employers should:
Develop and implement appropriate policies, in accordance with Federal, State, and local regulations guidance, and informed by industry practices, regarding:
Previously, OSHA published “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus.” The Manufacturers Alert adds six-foot physical distancing to those “Ten Steps” and tells manufacturing employers to consider limiting closer work or taking “innovative approaches” to limit exposures during closer work. Unlike the Ten Steps, the Manufacturers Alert also includes directions to allow workers to wear masks at work and to train workers on donning, doffing, and maintaining protective clothing and equipment.
OSHA’s Manufacturers Alert lists the following 12 “tips:”
For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.