Submitted by Freedman & Friedland LLC
Just recently on June 18, 2020, the federal Occupational Safety and Health Administration (OSHA) issued “Guidance on Returning to Work". The Guidance can be found at: https://www.osha.gov/Publications/OSHA4045.pdf.
OSHA, which is part of the federal Department of Labor, is responsible for overseeing, implementing and enforcing health and safety standards in the workplace. OSHA applies to most private employers, unless a particular state has a federally-approved OSHA plan in which case private employers are covered by that state’s OSHA-approved plan. New Jersey and New York, for example, only have OSHA-approved plans for public employees; so, private employees are covered by OSHA.
Staffing firms already have existing obligations to comply with OSHA health and safety requirements with respect to both internal staff employees and temporary employees. Staffing firms share this responsibility with their clients as joint employers, although both the staffing firm and the client have independent compliance obligations. The following OSHA website contains some helpful guidance on staffing firm obligations with respect to temporary employees: https://www.osha.gov/temp_workers/
The Guidance supplements the previously issued “Guidance on Preparing Workplaces for COVID-19" by OSHA and “Guidelines for Opening Up America Again” by the White House. The purpose of the Guidance is to help employers safely reopen their businesses and employees safely return to work as state and local governments begin the process of lifting stay-at-home orders and shelter-in-place orders related to the COVID-19 pandemic. The Reopening Guidance is in addition to existing and future guidance from the federal Centers for Disease Control and Prevention (CDC) and other guidance that might be issued at the federal, state or local level.
In particular, the Guidance includes “Guiding Principles” with corresponding “Examples of How to Implement” those principles. Specifically: hazard assessment; basic hygiene (ie, hands, respiratory etiquette, and cleaning and disinfection); social distancing; identifying and isolating sick workers; returning to work after illness or exposure; employer controls (ie, engineering controls, administrative controls, and safe work practices); workplace flexibilities (ie, telecommuting and sick leave); employee training; and anti-retaliation measures.
The Guidance also includes six “Employer Frequently Asked Questions” (FAQs) that address: COVID-19 testing, temperature checks and other health screenings, the process for doing so, and compliance with employment laws (for example, possible related discrimination issues under applicable federal, state and local law); returning to work; and the need for personal protective equipment (PPE).
Lastly, the Guidance details other OSHA resources that address both COVID-19-related and general workplace health and safety requirements and that are available as additional resources for employers, as well as attaches an Appendix outlining some of those requirements.
We recommend that staffing firms continue to monitor health and safety developments related to COVID-19 at the federal level (ie, OSHA and the CDC), as well as at the state and local level to the extent a staffing firm has any internal staff employees and/or temporary employees working in other states (for example, California has an OSHA-approved state plan covering private employers, and its Division of Occupational Safety and Health also recently published related COVID-19 guidance: https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html).
This article is intended to provide a limited overview of select federal, state and local health and safety issues. It is not intended to be comprehensive or to provide specific legal advice to any reader.
This article was written by Steven M. Friedland and Marc D. Freedman of Freedman & Friedland LLC. Freedman & Friedland LLC is a law firm with offices in New Jersey and New York that specializes in the laws pertaining to and affecting staffing firms, including, but not limited to, employment matters, co-employment, licensing/registration, mergers and acquisitions, restrictive covenants, trade secret protection, and litigation.