EPA and the CDC on April 29 provided updated guidance on steps employers and businesses should take to disinfect their premises, as part of the “Guidelines for Opening Up America Again.”  This provides important guidance for businesses to protect employees and members of the public, and to minimize potential liability arising out of coronavirus exposure in the workplace.

Most notably, the guidance urges businesses to develop plans setting forth “a cleaning and disinfecting strategy after reopening.”  Such plans should include:

  • An evaluation of surfaces in the workplace, including those that need only normal routine cleaning, and those that are high-contact areas and so need more frequent cleaning.
  • Identification of appropriate cleaning products for those surfaces, namely those on EPA’s List N of products approved for use against the coronavirus.
  • Use of appropriate personal protective equipment during the disinfection process.

Notably, EPA and the CDC have advised that surfaces “frequently touched by multiple people, such as door handles, desks, phones, light switches, and faucets, should be cleaned and disinfected at least daily.”  Other surfaces with more frequent contact, “such as shopping carts and point of sale keypads,” should be disinfected before “each use.”

While these guidelines are not mandatory, employers and businesses that do not follow them run the risk of potentially violating the Occupational Safety and Health Act’s “General Duty” clause, which requires employers to provide a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm to … employees.”  29 U.S.C. § 654(a)(1).  Failure to disinfect in conformity with the guidance could also potentially give rise to other third-party claims that the business did not take sufficient steps to disinfect its premises.  For example, family members who contract COVID-19 from an employee who is exposed at work may claim that the employer also owes them a duty of care, set in part by the guidance, and that failure to adhere to the guidance injured them.  Or regular customers who visit the site but have otherwise isolated at home might bring a premises liability claim, arguing that inadequate disinfection that does not meet the standards set forth in the guidance caused them to contract COVID-19.

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Photo of Thomas Brugato Thomas Brugato

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean…

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean Water Act, RCRA, CERCLA, EPCRA, TSCA, FIFRA, the Endangered Species Act, and the Occupational Safety and Health Act.

Mr. Brugato has extensive experience with EPA’s Renewable Fuel Standard program. He also has particular expertise in advising companies on environmental-related issues arising in the context of product recalls (such as compliance with PHMSA’s hazardous materials transportation regulations), including recalls under NHTSA or CPSC jurisdiction. Finally, Mr. Brugato has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.