Guidance to Employers for Developing a “Pandemic Plan”

OSHA and the CDC recommend each employer develop and implement an “infectious disease preparedness and response plan” or, more simply, a pandemic plan. In this regard, OSHA has issued its Guidance on Preparing Workplaces for COVID-19, along with numerous publications providing recommendations for specific industries. This guidance is being provided to employers so that they may meet their obligation to provide reasonable protections to their employees from the current pandemic created by the COVID-19 virus.
Although this guidance from OSHA is not a stand-alone standard or regulation, OSHA makes it clear that the employer’s obligation to provide a safe work environment under the General Duty Clause may, in fact, require the employer to adopt many of these recommendations. OSHA carefully states:

This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace. The Occupational Safety and Health Act requires employers to comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.

Notably, this guidance is intended to offer measures the employer may take in protecting its employees from being exposed to the virus and does not specifically address medical monitoring or evaluations designed to identify or treat employees who have already contracted the virus.

Developing the Pandemic Plan

In regards to the hazard posed by COVID-19, even the most diligent employer may have employees who are exposed to and eventually contract the virus.  The guidance published by the CDC and OSHA with numerous recommended methods of abatement are intended to assist employers in developing a pandemic plan that will protect employees from hazardous conditions related to COVID-19.

In its more general Guidance on Preparing Workplaces for COVID-19, OSHA states:

Employers who have not prepared for pandemic events should prepare themselves and their workers as far in advance as possible of potentially worsening outbreak conditions. Lack of continuity planning can result in a cascade of failures as employers attempt to address challenges of COVID-19 with insufficient resources and workers who might not be adequately trained for jobs they may have to perform under pandemic conditions.

OSHA’s guidance in developing a pandemic plan is “based on traditional infection prevention and industrial hygiene practices.”

In evaluating these practices for its workplace, the employer should follow the standard hierarchy of controls in developing its Pandemic Plan.

• Elimination and Substitution
• Engineering Controls
• Administrative Controls
• Personal Protective Equipment (PPE)

Essentially, this means that employers are advised to implement methods of abatement that fall into the following categories, ranked in order of preference:

• Elimination and Substitution: Prevent the virus from entering the workplace, perhaps through body temperature screening or, as the science develops, by actual real-time testing for the virus.
• Engineering Controls: isolate employees from the hazard through physical or mechanical controls such as air ventilation, physical barriers, re-configured workspaces.
• Administrative Controls: Changes in work policies or procedures that require action on the part of the employer or employee such as staggering shifts, encouraging sick employees to stay home, eliminating non-essential travel.
• Safe Work Practices: A type of administrative control that focuses on procedures for safe and proper work practices such as no-touch trash cans, disposable towels to clean work surfaces, signs reminding employees to wash hands, and hand sanitizer stations.
• Personal Protective Equipment (PPE): PPE is often required to address workplace hazards but it is seen by OSHA as a last resort in protecting employees from those hazards. Gloves, goggles, masks, face shields, and/or respiratory protection may be required depending on the specific workplace conditions. An employer is required by 29 CFR 1910.132 to assess the hazards that are present, or likely to be present, in its workplace and provide its employees the appropriate PPE for those hazards.

In reviewing the specific recommendations provided by OSHA in its guidance documents, employers should first determine which risk exposure level best describes their workplace.  OSHA breaks workplaces into four categories:

• Very High: Healthcare workers treating potentially infected patients using procedures that might expose them to directly to the patients breathing; laboratory employees working with specimens from infected patients.
• High: Healthcare delivery and support staff entering the rooms of infected patients; medical transport workers transporting potentially infected patients.
• Medium: Employees in high-population-density work environments; workers who have regular contact with the general public or travelers from international destinations.
• Low: Employees with minimal occupational contact with the general public or other co-workers.

Certain abatement measures that might be appropriate for an employer in a high-risk exposure work environment such as a hospital or medical clinic might not be appropriate for an employer in a lower risk category such as a manufacturing plant or a small administrative office. Once an employer has identified its risk exposure level, it should then evaluate OSHA’s specific recommendations using the elements of the General Duty Clause for guidance.