Regulatory Guidance

In the coming weeks and months, millions of American workers will be heading back into office buildings, schools, and other facilities that were vacated in an effort to halt the spread of SARS-CoV-2, the novel coronavirus that causes the disease known as COVID-19. Despite the fact that there is a great deal to learn about SARS-CoV-2, available evidence suggests that it may remain viable for hours to days on a variety of materials, including plastics and stainless steel. Keeping offices and other spaces vacant will go a long way to preventing the spread of the virus. For those offices/workspaces that are unable to close or where there have been suspected or confirmed cases of COVID-19, proper precautions should be taken to decontaminate those spaces. Some employers may choose to have their spaces decontaminated even after a long period of vacancy simply to alleviate concerns from employees and visitors to the building. In any event, building owners or other institutions overseeing any such decontamination should follow all available guidance issued by the Centers for Disease Control and Prevention (“CDC”), the Environmental Protection Agency (“EPA”), and the Occupational Safety and Health Administration (“OSHA”) to not only ensure the efficacy of decontamination, but to ensure those conducting the front line work are appropriately protected.

CDC Guidance

The CDC has issued thorough guidance on property decontamination procedures for non-healthcare facilities, e.g., schools, offices, businesses, that do not house persons overnight. First, rather than potentially expose inexperienced/untrained cleaning staff to the virus, building owners/employers may want to hire outside firms that focus on these types of decontamination or that conduct similar processes that involve isolating impacted areas, e.g., environmental consultants that conduct asbestos abatement. Many prominent environmental consulting firms are offering decontamination services during this public health emergency. CDC guidance recommends closing off areas used by personnel that have suspected or confirmed cases of COVID-19 and wait as long as practical before beginning cleaning/disinfection to reduce the risk of exposure to the virus for the individuals performing the cleaning. Environmental consultants can expertly isolate spaces by erecting temporary polypropylene barriers and closing off HVAC vents to prevent the spread of respiratory droplets to other parts of an office or building.

The CDC decontamination protocol involves both cleaning and disinfecting potentially impacted areas. First, for dirty surfaces, CDC recommends cleaning the surface using a detergent or soap and water prior to disinfection. Cleaning is followed by thorough disinfection. Disinfection should be conducted using diluted household bleach solutions, alcohol solutions with at least 70% alcohol, or EPA-registered household disinfectants. Note that some environmental consultants are taking the additional step of “fogging” impacted areas after the disinfectant stage with a substance that reportedly traps any of the virus remaining on surfaces after the disinfectant stage of the decontamination process. However, the CDC has indicated that these fogging agents have no impact on SARS-CoV-2 and do not recommend taking this additional step.    

EPA Guidance

In early March, EPA released “List N,” a list of products that meet EPA’s criteria for use against SARS-CoV-2. The List contains approximately 287 different products from a variety of different manufacturers that are expected to be effective against SARS-CoV-2. Although most of these products have not been tested against SARS-CoV-2, they are expected to be effective based on the product’s demonstrated efficacy against a harder-to-kill virus or against another human coronavirus. Companies interested in having their product listed on List N can email EPA’s disinfectant team at disinfectantslist@epa.gov.

OSHA Guidance

Employers should also be aware of applicable OSHA requirements that will come into play during the decontamination process, including Personal Protective Equipment (“PPE”) standards, Bloodborne Pathogen standards, training regarding the hazards of cleaning chemicals associated with decontamination, as well as OSHA’s General Duty Clause.

OSHA’s PPE standards require the use of gloves, eye and face protection and respiratory protection. Note that where respirators are necessary to protect workers, employers must implement a comprehensive respiratory program pursuant to 29 CFR 1910.134 with worksite-specific procedures. The program is required to, among other things, detail various procedures for selecting of respirators, fit-testing, and cleaning and disinfecting respirators. Employers would also be expected to appropriately train employees prior to any such decontamination activities. Given the urgent need for decontamination at various workplaces, it may not be possible for individual companies to develop this program in an expeditious manner. Outside environmental firms will be fully trained in the use of PPE, including respirators, and may be a more realistic short-term option in the face of this unprecedented threat. Employers also need to train employees on the hazards of cleaning chemicals used in the workplace in accordance with OSHA’s Hazard Communication standard (29 CFR 1910.1200). Again, this may not be feasible given the urgent need for decontamination in certain settings and an outside environmental consulting firm will have been trained on the hazards of decontamination and may be more capable of quickly acting.

Employers must also comply with OSHA’s Bloodborne Pathogen standards found at 29 CFR 1910.1030. OSHA’s Bloodborne Pathogen standards require the creation and implementation of an Exposure Control Plan that sets forth procedures in place to manage potentially infectious material, including PPE worn during decontamination procedures.

Also note that OSHA recordkeeping requirements at 29 CFR 1904 may require employers to record confirmed COVID-19 cases on their OSHA 300 log if a worker is infected as a result of performing their work-related duties. The illness is recordable if it results in death, days away from work, restricted work, medical treatment beyond first aid, or loss of consciousness.

Finally, employers are required to comply with the General Duty Clause of the Occupational Safety and Health Act of 1970 (Section 5(a)(1)) which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Following the steps outlined above will enable building owners and employers to meet that duty.

If you encounter any of these issues and wish to speak with one of our attorneys to help guide you through this process, please do not hesitate to reach out to Doug Cohen, Franca DeRosa or Kyle Johnson.

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The views expressed herein are solely the views of the authors and do not represent the views of Brown Rudnick LLP, those parties represented by the authors, or those parties represented by Brown Rudnick LLP. Specific legal advice depends on the facts of each situation and may vary from situation to situation. Information contained in this article is not intended to constitute legal advice by the authors or the lawyers at Brown Rudnick LLP, and it does not establish a lawyer-client relationship.