Fed OSHA’s COVID-19 ETS: What You Need to Know About Physical Distancing

By Conn Maciel Carey’s COVID-19 Task Force

Today’s topic is physical distancing…when distancing is required and ways to maintain distance.

29 C.F.R. Section 1910.502(h) establishes the requirements employers covered by the ETS must follow regarding physical distancing.  Employers must ensure that each employee is separated from all other people by at least 6 feet when indoors, unless the employer can demonstrate that it is not feasible to remain distant to accomplish a specific activity (e.g., hands-on medical care).  This summary describes the physical distancing requirements of the ETS.

To determine when and where physical distancing is necessary in the workplace, employers must rely on the results of their hazard assessments.  Places and times where people may congregate or come in contact with one another must be identified and addressed, regardless of whether employees are performing an assigned work task or not.  For instance, it is typical that employees congregate during meetings or training sessions, as well as in and around entrances, bathrooms, hallways, aisles, walkways, elevators, breakrooms or eating areas, and waiting areas.  All of these areas must be identified and addressed as part of the hazard assessment.

After identifying potential areas where employees may congregate and therefore where concern regarding workplace exposure is heightened, employers must develop and implement policies and procedures to comply with the 6 feet physical distancing requirements.

The ETS establishes several exceptions to the physical distancing requirements of the standard. Physical distancing is not required for employees who are fully vaccinated when those employees are in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.  (Face masking and physical barriers also are not required in this situation.)

The physical distancing requirement also does not apply to momentary exposure while people are in movement (e.g., passing in hallways or aisles).  OSHA’s ETS FAQs note that the exception applies where momentary exposures happen on an infrequent or occasional basis.  If an employee quickly passes another person in a hallway or aisle a few times a day, the distancing requirement would not apply.  On the other hand, physical distancing would be required for short conversations in a hallway or at a cubicle, as well as in other situations involving frequent, albeit brief contact.  Similarly, physical distancing (from employees and non-employees alike) is required where employees are repeatedly passing by each other to perform their tasks (e.g., where employees are regularly moving around to check on patients).  Physical distancing is also required (meaning the exception for momentary exposures does not apply) for food service employees in a cafeteria setting (e.g., taking customer orders at a food service counter or waiting on tables).

Additionally, when an employer can establish that it is not feasible for an employee to maintain a distance of at least 6 feet from all other people, the 6 feet requirement does not apply, but the employer must ensure that the employee is as far apart from all other people as feasible.  OSHA’s ETS FAQs provide guidance regarding the circumstances in which physical distancing may not be feasible.  For example, there may be situations where a room or other workspace is less than 6 feet in length and width and two employees, or an employee and a patient, must be in it at the same time.

The burden is on the employer to demonstrate that it is infeasible to comply with the required physical distancing for a specific activity or workspace.  If the employer can demonstrate that the space cannot be expanded, and that multiple employees must be in that space at the same time to conduct the job task (i.e., that there are no other feasible alternatives that would permit 6 feet of physical distancing), the employer satisfies its infeasibility burden.

The preamble to the ETS sheds more light on infeasibility.  It acknowledges that maintaining physical distance between a healthcare provider and patient is not always feasible when conducting an in-person exam or providing medical treatment, particularly within a small exam room; however, it is more likely that physical distance of 6 feet can be maintained when healthcare providers are asking patients questions about their medical history or problems they are experiencing.  OSHA reiterates that it requires employers to ensure 6 feet whenever possible, and reminds that employees who provide medical care will also be protected by other aspects of the ETS, including the use of facemasks or respirators and other PPE, depending on the circumstances, and cleaning and disinfection requirements.

The preamble goes on to describe other job duties that may require employees to be within 6 feet of others, including patient transport, operations security, multi-person maintenance tasks, and confined space work.  Here, OSHA states that physical distancing of 6 feet may be difficult to maintain at all times in constricted areas, even after the employer has reallocated work tasks or redesigned workflow to maximize distancing.  It provides that, in all cases, the burden is on the employer to demonstrate that it is infeasible to comply with the required physical distancing for a specific activity, and in such cases, employers must ensure that employees maintain as much physical distance as feasible and that physical distancing is layered with the other means of protection required by this standard (e.g., facemask use, cleaning and disinfection, installation of physical barriers).

OSHA’s ETS Compliance Directive informs that, if an employer claims it is infeasible to separate employees, CSHOs should interview the employer to determine why physical distancing is not feasible and what alternative measures were implemented.  CSHOs are also directed to request any relevant documentation, which supports the employer’s position regarding infeasibility and document this in their casefiles.  The Compliance Directive further states that, when an employer establishes it is not feasible for an employee to maintain a distance of at least 6 feet from all other people, the employer must ensure that the employee is as far apart as feasible and implement the remaining layers of overlapping controls, including physical barriers, source control, hand hygiene, and ventilation, required by the ETS to reduce the risk of COVID19 transmission.  CSHOs are directed to obtain photos and measurements during the walkaround of the affected area as necessary to document the workspace layout, and the physical distance between people.

OSHA notes that physical distancing can include (but does not mandate) methods such as: telehealth; telework or other remote work arrangements; reducing the number of people, including non-employees, in an area at one time; visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path of travel; staggered arrival, departure, work, and break times; and adjusted work processes or procedures to allow greater distance between employees.

Please contact any of the OSHA attorneys in Conn Maciel Carey’s national OSHA Practice if you need help determining when and/or how to maintain physical distancing.  Also, check out our articles about other sections of the ETS, including:

Look for another blog tomorrow!

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