Womble Bond Dickinson Partner Lisa Rushton co-authored this Client Alert with Shaun C. Malin, PG, Regional Manager, HRP Associates, Inc.
By now, every segment of our economy and industrial sector has been touched by the novel coronavirus, COVID-19. A recent supply management survey found that three out of every four U.S. businesses have experienced some form of disruption due to impacts on the shipping industry. Schools, hotels, airlines, restaurants, commercial real estate, and manufacturing centers all are facing unprecedented challenges and pondering one simple question: How do we get back to work? For companies with operations deemed essential, the question is more specifically how do we continue working following an employee exposure or potential exposure to COVID-19.
Regardless of sector, business owners and employers are being challenged more than ever to implement rigorous cleaning procedures to protect the health and safety of employees and customers (and by extension their surrounding communities) and to reduce the operational and financial impacts of the virus. Aside from actively encouraging sick employees and employees with sick family members to stay home and educating employees on the importance of hand washing with soap and water for at least 20 seconds, the use of hand sanitizer with at least 60% alcohol if soap and water are not available, the importance of not touching their eyes, nose, and mouth with unwashed hands, and social distancing, companies need to otherwise plan for, and be ready to respond to, the ever increasing possibility that one of their employees will be diagnosed with COVID-19.
Prior to receiving any report of sickness, employers should encourage social distancing to the extent possible, including the implementation of staggered breaks, adjusting times when essential personnel must be in the workplace, and discouraging congregation in lunch or break rooms. Employees and employers should consider pilot testing the use of face masks to ensure they do not interfere with other required personal protective equipment and work assignments. And, the CDC recommends that companies implement policies for routine environmental cleaning and disinfection. (See the CDC's Interim Guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspect or Confirmed COVID-19.)
Companies should frequently clean and disinfect routinely touched objects and surfaces such as workstations, keyboards, telephones, handrails, and doorknobs. Employees should be discouraged from using other workers’ phones, desks, offices, or other work tools and equipment, when possible. If sharing such equipment is unavoidable, we recommend that such equipment be cleaned and disinfected before and after each use. Companies should provide EPA approved disposable disinfectant wipes so that commonly used surfaces (e.g. doorknobs, keyboards, remote controls, desks, other work tools and equipment) can be wiped down by employees before each use.
For routine cleaning, dirty surfaces should be washed with soap and water prior to disinfection. For disinfection, the CDC recommends use of products that are appropriate for the surface and meet EPA’s criteria for use against SARS-CoV-2, a list of which may be found on EPA's website. The CDC also recommends employers consider implementing engineering controls such as increasing ventilation rates on building ventilation system or increasing the percentage of outdoor air that circulates in a system.
When it comes to a preparedness and response planning, many clients report having a written plan already in place, but the reality is that most plans reviewed have gaps that need to be addressed, and others are simply inadequate to combat COVID-19. While there is no clear regulatory directive that mandates preparation or dictates the contents of such a plan, there is an emerging argument that the Bloodborne Pathogens regulations in 29 CFR 1910.1030, OSHA’s General Duty Clause and other CDC and OSHA guidance provide guideposts and identify steps employers can take to prevent occupational exposure to COVID-19. There also are some practical reasons for taking proactive steps to prepare a response plan.
Consider the following situations that we see unfolding daily:
- Large multistate manufacturing companies are struggling to implement a uniform approach towards combating the virus within their workforce. Decisions are being made at the local level, which translates to variability in response actions and the cost for cleaning/disinfection;
- National, franchised-based cleaning contractors are most often independent operators that require assistance regarding the management and coordination of large-scale, multi-facility industrial projects and to ensure that all activities are in conformance with CDC guidelines;
- Not unlike the medical field, essential service contractors are having trouble acquiring PPE, thermometers, and disinfection supplies needed to initiate decontamination efforts as commercial/industrial markets plan for normalcy. This is going to result in a shortage at some point in time and projects are going to stall; and
- Clients are offering contractors retainers for disinfection services in order to ensure an immediate response should an employee test positive for COVID-19. These retainers will allow companies to ‘jump line’ when the volume of disinfection projects reaches workforce and/or supply capacity.
When an employee is exposed to, or confirmed to have, COVID-19, a company needs to make decisions with regard to whether and how it will implement the CDC's cleaning and disinfection recommendations. For many companies, this is no small task. Having a plan already in place to follow and implement should result in a more appropriate, cost effective and efficient solution that ideally protects employees and gets an essential workforce back to work sooner rather than later.
When it comes to implementation of a response plan, the reality is that most companies will employ third party janitorial services or turn to specialty Environmental Health and Safety consultants and remediation professionals for cleaning and disinfection. Regardless of approach or service provider, there are a number of issues that companies should consider as they prepare a response plan, ideally before being faced with a crisis:
- Do you understand the scope and nature of the services for which you will be contracting? The CDC defines cleaning as “the removal of dirt and impurities, including germs, from surfaces.” Cleaning alone does not kill germs. But by removing the germs, it decreases their number and therefore any risk of spreading infection. Disinfection on the other hand requires “the use of chemicals, for example EPA-registered disinfectants, to kill germs on surfaces.” This process does not necessarily clean dirty surfaces or remove germs. But killing germs remaining on a surface after cleaning further reduces any risk of spreading infection.
- Should you consider placing a third party provider on contract prior to facing a crisis? What should you consider before contracting?
- Has the local service provider been certified as an essential business that can respond in the event of a stay at home or shelter in place order?
- Will they provide their disinfection protocol for review, and is it consistent with CDC guidelines?
- How quickly can the third party provider respond to a call to clean or disinfect your facility?
- “How long will we be shut-down?” What’s the provider’s anticipated square footage coverage per day?
- Is the provider able to supply relevant training records for, and appropriate personal protection equipment (PPE) to, the individuals that are responding to your facility?
- Does your company’s NAICS code require adherence to maintaining OSHA 300 logs, and if so, is tasking employees with COVID-19 related cleanings a good business decision?
- How do your employees view the company’s response towards protecting their health during this epidemic? Does handling disinfection efforts in-house yield positive or negative optics to your work force?
- How clean is clean? At present there are no laws or regulations that dictate how clean is clean or the level to which a building should be disinfected vs cleaned. Typical costs to clean a facility using a standard residential and commercial cleaning company averages between $1.75 - $2.50 per square foot. The cost to do a CDC compliant decontamination averages about $5.00 per square foot. For a typical manufacturing floor of 100,000 square feet, this could mean a difference of $300,000 per cleaning or disinfection. If a COVID-positive employee’s activities and movement is limited to specific areas, perhaps a focused CDC decontamination using disinfectants may be appropriate with a lesser level of cleaning in other areas (e.g., a bullseye cleaning approach). The scope of cleaning and disinfection may be appropriately based on an exposure-based analysis, which may take into account the following:
- What is the size of your facility and do employees have access to all or limited areas of the facility?
- Does the entire facility or just a target area of employee occupancy need to be cleaned, disinfected following CDC guidelines or both if an employee is confirmed to have COVID-19?
- What areas of your business are not conducive to a traditional water-based cleaning (e.g., sensitive equipment areas, clean rooms, IT, QC laboratories, etc.)?
- Can cleanings be performed after hours or during a light shift for ease of movement, and how does that impact the cost of service?
- Are there areas of the facility that a COVID-positive employee would not access based on role and/or department?
- What is the protocol for allowing employees back into areas that have been decontaminated (e.g., temperature checks, signed employee affidavits confirming lack of target symptoms, etc.)?
- Who is authorized and trained to perform employee health screenings upon return to the decontaminated facility or area?
- Does a cost analysis of company down-time following a confirmed COVID case warrant consideration of a retainer to ensure a prompt response and swift action? There is no debate that contractor availability will become scarce during the forthcoming ramp-up of normal activities.
- What products will the third party provider bring on-site and use to clean or disinfect your premises and are they on EPA’s approved list? Will they provide you with material safety data sheets on all products used? Will the disinfectant chemicals negatively interact with chemicals or materials used throughout your manufacturing process? Employers must ensure workers are trained on the hazards of the cleaning chemicals used in the workplace in accordance with OSHA’s Hazard Communication standard (29 CFR 1910.1200 ). Employers also must comply with OSHA’s standards on Bloodborne Pathogens (29 CFR 1910.1030), including proper disposal of regulated waste and personal protective equipment, when used (29 CFR 1910.132).
- Will your insurance cover the cost for cleaning or disinfecting? Environmental insurance can be designed to include affirmative cleanup, disinfection and decontamination coverage as a result of, among other things, a discharge, dispersal, release or escape of bacteria and viruses. Typically, under pollution policies, disinfection expenses are specifically defined, and coverage is only provided for the properties which are specifically scheduled to an insurance policy. Additionally, policies may require an order from a local, state or federal governmental or public health agency or entity to disinfect the property in order to trigger coverage. Other policies contain specific exclusions for disinfection expenses associated with communicable diseases (i.e., diseases transmitted via human to-human contact). Such policy language will likely preclude coverage for COVID-19. Lastly, it will be important to note whether a policy has triggering requirements related to discovery and/or reporting to regulatory authorities or the insurance company. Aside from pollution coverage, companies should consider whether their crisis management or business interruption expense coverage could assist with any defrayment of costs.
Lastly, companies must consider whether a suspect or confirmed COVID-19 case triggers any other recordkeeping or reporting requirements, including:
- Will it be a recordable incident if an employee is confirmed with COVID-19 on the OSHA 300 Log? The answer here is, it depends. Not all employers are required to maintain work-related injuries and illness records. Some employers are exempt based on their North American Industry Classification System (NAICS) codes. But assuming the establishment is not exempt and is required to maintain work-related injury and illness records, COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties, and the case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).
- Is an employee confirmed with COVD-19 reportable to OSHA? The answer to this question depends on the outcome of the case. The only way a COVID-19 case becomes reportable to OSHA is if the employee passes away or is hospitalized as an in-patient as a result of COVID-19 contracted while or resulting from the performance of work-related duties. If reportable, normal criteria for reporting severe injuries applies to COVID-19 cases. Employers must report any worker fatality within 8 hours and any hospitalization of a worker within 24 hours. It should be noted that even employers who are exempt from recordkeeping must report severe injuries when they meet this reporting criteria.
All in all, the time is ripe for business owners and employers to review, update or prepare a response plan in the increasingly likely event that they are faced with a suspect or confirmed COVID-19 case at one of their facilities, buildings or operating locations.