News & Insights
Mar 17, 2020
Has OSHA developed standards specifically with respect to COVID-19?
At this time, OSHA has not created specific OSHA standards for COVID-19. However, OSHA is carefully monitoring the situation. It has created a centralized website for employers to familiarize themselves with the disease, including its transmission and what can be done to protect employees. On this website, OSHA has identified existing standards that may apply to or provide a framework for dealing with COVID-19, including its Personal Protective Equipment standard (29 C.F.R. 1910, Subpart 1), Respiratory Protection standard (29 C.F.R. 1910.134), Bloodborne Pathogens standard (29 C.F.R. 1910.1030), Hazard Communication standard (29 C.F.R. 1910.1200), and General Duty Clause (29 U.S.C. § 654(a)(1)).
Has OSHA issued any other guidance with respect to COVID-19?
Yes, OSHA has issued two difference sets of guidance for employers. First, “Guidance on Preparing Workplaces for COVID-19,” released in conjunction with the U.S. Department of Labor, offers general guidance for businesses, with information about COVID-19 and tips to reduce employees’ exposure to COVID-19. While this publication predates the current isolation steps being taken by many governments and businesses, it still contains valuable information about how to ensure your COVID-19 procedures are OSHA-compliant.
Second, on March 14, 2020, OSHA released Temporary Enforcement Guidance for Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak. This guidance instructs OSHA administrators on how to deal with enforcement of the Respiratory Protection standard in the face of shortages of surgical masks. The guidance essentially gives OSHA administrators discretion in enforcing existing rules of surgical masks, including annual fit testing, so long as employers are making a good-faith effort to comply with the standard and implementing appropriate procedures recommended by OSHA and the CDC.
Has OSHA identified industries that are most likely to be affected by COVID-19?
Yes, while OSHA has assured employers that there is a “low risk of exposure in most job sectors,” it has identified industries that may be at an elevated risk of infection, including healthcare, deathcare or mortuary services, laboratories, airline operations, border protection, solid waste and wastewater management, and those involving travel to areas where the virus is spreading, including China. Specific guidance for control and prevention for each of these potentially high-risk industries is available on the OSHA website.
The CDC also has specific information for some industries, including community- and faith-based organizations, schools and childcare, colleges and universities, first responders and law enforcement, public health communicators, correctional and detention facilities, retirement communities, healthcare professionals, laboratories, airlines, and cruise and cargo ships.
What are my obligations under the OSH Act to protect my employees from COVID-19?
OSHA’s standards, including the Personal Protective Equipment standard and Respiratory Protection standard, require employers to assess the hazards to which their workers may be exposed. OSHA recommends that employers consider whether their employees are likely to encounter people with COVID-19 as part of their duties or exposed to environments or materials that may be contaminated with the virus. Employers should also identify people in their workplaces that may have COVID-19 or may have been exposed to COVID-19 in order to identify exposure risk to other employees.
OSHA has endorsed the interim guidance issued by the Centers for Disease Control as procedures for dealing with the threat from COVID-19. The CDC guidance recommends that employers actively encourage sick employees to stay home, emphasize to all employees the importance of staying home when sick and practicing good hand hygiene, perform routine and enhanced environmental cleaning and disinfecting, advise employees of safe practices for traveling, ask that employees notify the employer about infected family members or other sources of possible exposure, limit gatherings and meetings as much as possible, and implement flexible leave and social distancing policies.
OSHA’s General Duty Clause requires all employers to provide a safe work environment against known threats, which may now include COVID-19, so OSHA recommends that all employers stay vigilant to the evolving outbreak situation and adopt additional precautions as necessary. Violations of the General Duty Clause could result in fines of up to $70,000 for willful violations and up to $7,000 for each mistake.
An employee is suffering from COVID-19. Do I have to include this employee in my Form 300 or complete a Form 301?
Yes, if all the following conditions are met:
Is there any other guidance on further steps that may be taken to protect my employees?
Yes, California’s state OSHA has issued its own guidance with recommendations aimed at preventing the infection and spread of COVID-19. California’s OSHA standards require employers to have specific written plans and procedures for Aerosol Transmissible Diseases, or diseases and pathogens that spread through the air. These plans and procedures must include procedures to identify and isolate suspected cases, procedures to communicate with employees regarding suspected or confirmed infections, procedures and training regarding Personal Protective Equipment, decontamination, and procedures to identify potential employee exposures.
Can I terminate an employee who makes a report of an unsafe working environment and then refuses to work based upon the belief that the workplace is unsafe?
It depends. An employee’s duty to report to work on time and ready to perform his or her job duties is not excused based on a generalized fear of safety solely because an COVID-19 patient is working for or being treated by the employer or because the employee is generally afraid to leave self-isolation. If the employee refuses to report to work, then the standard attendance policies that typically include progressive discipline should be followed. The same would remain true even if the employee has reported a perceived OSHA claim related to COVID-19 exposure through internal or external complaint procedure. However, if the employee has a specific fear based upon articulable facts, employers should exercise caution in termination.
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