With the White House unveiling its guidelines for opening up America again, responsibility has been placed on states and local officials to assess their preparedness to stay ahead of the spread of COVID-19, and when ready, reopen their economies. In anticipation of resuming operations in the new normal, the White House has also charged employers to “develop and implement appropriate policies” to keep workers and patrons safe from contagion. In doing so, employers should weigh their legal obligations with emerging guidance from health authorities when building their COVID-19 return to work policy.

The Legal Standards

–       OSHA

The Occupational Safety and Health Act of 1970 (OSHA) was passed to help ensure safe and healthful working conditions for American workers. For workers whose jobs place them in direct and continuous contact with the novel coronavirus, OSHA has established standards concerning the use of personal proactive equipment, like gloves, masks, and face shields. For all employers, the Act’s “General Duty Clause” requires that employers provide “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious physical harm to [its] employees.”

Seeing as the transmission of the coronavirus generally occurs via respiratory means from close personal contact with others, employers in the U.S. have a duty to devise and implement a plan that keeps their workers safe from the disease. However, in doing so, employers must act in a way that is well-reasoned in its approach and not discriminatory in its application.

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