Last Updated: 2.2.2021 @ 1:30 pm
DISCLAIMER: The following information is a guide, not intended to be used as legal advice, and no attorney client relationship is established by any communication through this website. Because every situation and every workplace is different we ask that you contact us with specific questions.
OSHA Published Guidance
OSHA is closely coordinating with CDC, NIOSH, and other agencies to monitor the ongoing outbreak. In order to reduce the risk of hazard as much as possible, employers should review OSHA’s new Guidelines for Preparing Workplaces for COVID-19.
- The guidelines are advisory and informational in nature only.
- The guidelines do not create any new legal obligations.
- The guidelines assist employers with identifying a risk level for their employees and determining appropriate control measures.
- Most employers should follow basic steps to reduce risk.
- Employers should be encouraged to promote frequent hand-washing,
- stay home if sick,
- exercise respiratory etiquette (sneeze and cough into the elbow or a tissue),
- discourage employees from using other employees’ phones, desks, offices, and work tools, and
- maintain regular housekeeping including cleaning and disinfecting surfaces.
OSHA has developed a website with information for workers and employers on how to stay healthy during the outbreak.
- Website includes information on implementing the hierarchy of controls when workers have specific exposure risks.
- Additional OSHA Published Guidance can be found here.
Exposure to Coronavirus/COVID-19
- Train all workers about their risk of occupational exposure to COVID-19, as well as on what to do if they have traveled to high-risk areas or been exposed to possible cases.
- For workers at particular risk of exposure (e.g., in healthcare, others), discuss:
- Sources of exposure to the virus and hazards associated with that exposure.
- Appropriate ways to prevent or reduce the likelihood of exposure, including use of engineering and administrative controls, safe work practices, and PPE.
- Some OSHA standards (e.g., BBP, PPE) require worker training.
- If an employee is exposed to COVID-19 in the work environment, and is diagnosed with the Coronavirus, and receives “medical treatment” or the case involves restricted work duties or days away from work, then the case may be an OSHA recordable event.
- Most U.S. workers are at low risk of exposure, similar to other members of the general American public. Employees working in the following industries are at an increased risk of occupational exposure to COVID-19.
- healthcare industry,
- mortuary services,
- airline operations,
- international business travel
OSHA does not recommend any special precautions, beyond general hygiene practices, for most workers. There is no OSHA standard specifically addressing airborne viruses or diseases such as COVID-19. However, employers should be aware that OSHA would rely upon Section 5(a)(1) of the OSH Act, otherwise known as the General Duty Clause, if appropriate to issue a citation. Section 5(a)(1) of the Occupational Safety and Health Act states:
- (a) Each employer —
- shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.
Protecting Workers During a Pandemic
On January 29, 2021 the Occupational Safety & Health Administration (OSHA) Deputy Assistant Secretary Jim Frederick issued a Guidance statement providing information to employers and employees regarding the implementation of a COVID-19 protection program. The Guidance is intended to be informational only to provide assistance to employers for planning and guidance purposes. However, the statement does recommend that employers use this guidance as one way to identify risks in the workplace of exposure to the COVID-19 virus and determine appropriate control measures, accordingly. The Guidance statement describes in detail the COVID-19 virus and what employers and employees need to know to mitigate risk of exposure and infection. Importantly, the Guidance statement identifies and describes the elements of an effective COVID-19 prevention program and recommendations for quarantining exposed or infected individuals. Most of the substance of the Guidance statement is well known and issued previously by OSHA. However, the language used in the Guidance statement issued on January 29, 2021 is stronger and should cause employers to understand and appreciate their responsibility to make a good faith effort to comply with the recommendations. The Guidance statement can be found here. Employers with questions about the Guidance statement or the development of a COVID-19 policy should contact a member of our Labor & Employment section.
OSHA issued a Fact Sheet to Protect Workers During a Pandemic which includes practical advice on employee protection. Summary below.
- Employers should ensure workers understand:
- Differences between seasonal epidemics and worldwide pandemic outbreaks;
- Which job activities may put them at risk of exposure;
- Options available for working remotely or utilizing flexible leave policy when sick;
- Social distancing strategies;
- Good hygiene and disinfection procedures;
- What PPE is available, and how to wear, use, clean and store it properly;
- What medical services may be available to them;
- How supervisors will provide updated communications and where to direct questions.
- Employers may consider providing sick leave so workers may stay home when sick to stop spread of diseases.
- Employers should follow CDC recommendations for training on infection controls and importance of social distancing.
- Employers should provide adequate supplies and access to soap and water, tissues, alcohol-based hand sanitizers and cleaning agents, as well as giving frequent reminders to workers to comply with hygiene practices.
- Employers may modify work environment and/or change work practices to provide additional protection to workers/clients.
- Installation of physical barriers (plastic sneeze guard)
- Conduct business in a different matter (drive-through service or telework)
- Improve ventilation (installation of air filters or increase ventilation rates)
- Install hand sanitizer dispensers
- Provide tissues
- Require use of PPE
- Workers with job-related exposure to infections who voluntarily disclose personal health risks should be considered for job accommodations or additional protective measures.
OSHA’s On-Site Consultation Program offers free and confidential advice to small and medium-sized businesses with priority given to high-hazard worksites. Consultation services are separate from enforcement and do not result in penalties or citations.
Retail Worker Protection
OSHA has also issued an alert listing safety tips employers can follow specifically to help protect retail workers from exposure to coronavirus.
Safety measures employers can implement to protect employees working in pharmacies, supermarkets, big box stores and other retail establishments include:
- Routinely cleaning and disinfecting surfaces and equipment with Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus;
- Using a drive-through window or offering curbside pick-up;
- Recommending that workers wear masks over their nose and mouth to prevent them from spreading the virus; and
- Practicing sensible social distancing, which could include opening only every other cash register, temporarily moving workstations to create more distance and installing plexiglass partitions between workstations.
OSHA enforcement authority
- During emergency response operations, even when OSHA is operating in a technical assistance and support mode, OSHA standards remain in effect and OSHA retains its ability to enforce the OSHA standards under the OSH Act.
- Enforcement of OSHA standards follows the jurisdiction in place before the emergency, such as in states operating OSHA-approved occupational safety and health programs called State Plans.
- The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued new Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID19) Pandemic.
- This memorandum provides interim guidance to Compliance Safety and Health Officers (CSHOs) for enforcing Respiratory Protection standard, 29 CFR § 1910.134, and certain other health standards, with regard to supply shortages of N95 respirators. CSHOs will have discretion to permit the extended use and reuse of disposable respirators, as well as the use of expired respirators that are beyond their manufacturer’s recommended shelf life.
OSHA will continue to ensure safe and healthy conditions for America’s working men and women by enforcing standards during this health crisis. In addition, heightened attention will be given to the risks posed by SARS-CoV-2. OSHA has issued an Interim Response Plan to outline how the agency will continue to discharge these responsibilities in the differing circumstances throughout the country. First, the plan identifies 3 Workplace Risk Levels for purposes of prioritizing OSHA enforcement activities during the Coronavirus Disease 2019 (COVID-19) pandemic. The workplace risk levels below are from the Occupational Risk Pyramid described in the OSHA publication, Guidance on Preparing Workplaces for COVID-19, OSHA publication 3990), www.osha.gov/Publications/OSHA3990.pdf.
- High and very high exposure risk jobs are those with high potential for exposure to known or suspected sources of SARS-CoV-2 that occurs during specific medical, postmortem, or laboratory procedures. Workplaces considered to have job duties with high risk of exposures to COVID-19 include, but are not limited to, hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities, settings where home care or hospice care are provided, settings that handle human remains, biomedical laboratories, including clinical laboratories, and medical transport. Aerosol-generating procedures, in particular, present a very high risk of exposure to workers. The aerosol-generating procedures for which engineering controls, administrative controls, and personal protective equipment (PPE) are necessary include, but are not limited to, bronchoscopy, sputum induction, nebulizer therapy, endotracheal intubation and extubation, open suctioning of airways, cardiopulmonary resuscitation and autopsies.
- Medium exposure risk jobs include those with frequent and/or close contact with, i.e., within 6 feet of, people who may be (but are not known to be) infected with SARS-CoV-2. Workers in this risk group may have frequent contact with travelers returning from international locations with widespread COVID-19 transmission. In areas where there is ongoing community transmission, workers in this category, include, but are not limited to, those who have contact with the general public (e.g., in schools, high-population-density work environments, and some high-volume retail settings).
- Lower exposure risk jobs are those that do not require contact with people known to be, or suspected of being, infected with SARS-CoV-2, nor frequent close contact with, i.e., within 6 feet of, the general public. Workers in this category have minimal occupational contact with the public and other coworkers.
Next the response plan outlines priorities for responses to OSHA complaints, referrals, and Rapid Response Investigations (RRIs).
- Fatalities and imminent danger exposures related to COVID-19 will be prioritized for inspections, with particular attention given to healthcare organizations and first responders. During this outbreak, formal complaints alleging unprotected exposures to COVID-19 for workers with a high/very high risk of transmission, such as a fatality that is potentially related to exposures to confirmed or suspected COVID-19 patients while performing aerosol-generating procedures without adequate PPE in a hospital, may warrant an on-site inspection. ADs should prioritize resources and consider all relevant factors, such as whether the complainant alleges inadequate PPE due to supply issues, in determining whether to perform a non-formal phone/fax investigation instead of an on-site inspection.
- All other formal complaints alleging SARS-CoV-2 exposure, where employees are engaged in medium or lower exposure risk tasks (g., billing clerks), will not normally result in an on-site inspection. In such cases, Area Offices will use the non-formal procedures for investigating alleged hazards. Inadequate responses to a phone/fax investigation should be considered for an on-site inspection in accordance with the FOM.
- Non-formal complaints and referrals related to COVID-19 exposures will be investigated using non-formal processing to expedite employers’ attention to alleged hazards.
- Employer-reported hospitalizations will be handled using the rapid response investigation (RRI) in most cases. Refer to procedures in the OSHA Memorandum on RRIs dated March 4, 2016, for further information on RRI processing.
- Area Offices should document the status and condition of the work operations to the extent possible, noting any potentially serious hazard(s). This should include information (such as the type of process or conditions of exposure) indicative of the likelihood of exposure to SARS-CoV-2.
- Workers requesting inspections, complaining of COVID-19 exposure, or reporting illnesses may be covered under one or more whistleblower statutes. Inform them of their protections from retaliation and refer them to whistleblowers.gov/ for more information.
- Finally, OSHA will forward complaint information deemed appropriate to federal partners with concurrent interests.
OSHA Recording & Reporting
Many of the COVID-19 OSHA citations involve alleged violations of failure to report properly and timely a COVID-19 related illness or fatality, and failure to document a COVID-19 illness as an OSHA recordable event. This brief video clip with attorney Carl Habekost addresses questions surrounding COVID-19 reporting and recording requirements.
A: OSHA issued a 4/16/2020 Enforcement Memo addressing discretion regarding enforcement when considering an employer’s good faith efforts during the COVID-19 Pandemic. CSHOs will evaluate and document if the company in violation has made good faith to prevent hazards for employees and to adhere to the existing, applicable OSHA standards. These factors will be strongly considered before issuing a citation:
- Did employer explore options such as remote work;
- Employer’s interim alternative protections (social distancing, limited staffing);
- Employer take steps / action to reschedule the required activity (i.e. training, assessment, audit);
- Sufficient employer documentation of actions toward compliance
If employer shows no effort in compliance, the existing OSHA policies and standards are in effect, and the employer could be subject to a citation for documented violations.
To ensure corrective actions are taken by the employer, OSHA is developing a program to conduct monitoring inspections from random case sampling where violations were documented but not cited. OSHA will be providing additional guidance in the future on this program.
Q: Should employers restrict workers who have had potential exposures from coming to work?
A: The United States has implemented travel restrictions and quarantine measures to help safeguard the public’s health and limit imported cases from abroad.
Most employers do not need to institute monitoring on their own, but they may consider allowing workers with potential exposure or infection to use flexibilities, such as telework and sick leave, to reduce the exposure risk for others.
Q: Is the “fear” of going to a construction work site doing essential business function good cause for an employee to avoid work under OSHA 11(c) unsafe work condition?
A: OSHA 11(c) whistle-blower provisions only apply after reporting a hazard and would be in effect for employees. However, employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”
- The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work. Once again, this guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse to work.
Q: What is recommended for U.S. workers and employers of workers with potential occupational exposures to COVID-19?
- Identify and isolate suspected cases.
- Implement other precautions appropriate for the worksite and job tasks, and according to the hierarchy of controls.
Q: What should standard, contact, and airborne precautions consist of in workplaces where workers may be exposed to COVID-19?
A: OSHA guidance breaks this down by worker type.
- Engineering controls, such as isolation rooms and other physical barriers, can limit most workers’ exposures.
- Administrative controls and safe work practices include measures such as limiting access to patient care areas, effective sharps management, and worker training.
- PPE may include gloves, gowns, goggles or face shields, and N95 or better respirators.
Q: Why do OSHA and CDC recommend goggles in addition to airborne precautions?
A: Precautions for COVID-19 are based on evolving epidemiologic evidence of how the virus spreads, and what is known about transmission from SARS and MERS outbreaks.
- Airborne precautions, including the use of NIOSH-certified N95 or better respirators, are appropriate because the virus may be spread through a range of respirable particle sizes.
- Since COVID-19 may infect people through mucous membranes of the eyes and face, face/eye protection is also needed.
Q: Clinical samples of sputum are not covered by the BBP standard’s universal precautions. How should employers protect workers handling these samples?
A: While universal precautions do not apply to sputum in the BBP standard, standard precautions that CDC introduced to protect healthcare workers from a wider range of pathogens, do. Follow standard and transmission-based (contact + airborne) precautions.
- OSHA and CDC infection prevention recommendations are more protective than the minimum precautions the BBP standard requires.
Q: COVID-19 is not a bloodborne pathogen, so does the BBP standard apply?
A: The BBP standard applies to occupational exposure to blood, certain body fluids, and other potentially infectious materials, as defined in the standard.
- Even though COVID-19 is a respiratory virus, workers in healthcare and other sectors may still have occupational exposures covered by the standard.
- In those cases, employers must comply with the provisions of the standard.
Q: Do I have to record cases of COVID-19 on my entity’s OSHA 300, 300A, & 301 forms?
A: While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job. OSHA has published a memo with additional injury and illness recordkeeping information at https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19
For more information, check out out brief video on this subject.
Q: What disinfectant products should we use?
A: This list is updated frequently. https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2
Q: Could you address the right to refuse, regarding if an employee refuses to come to work, but does not have COVID symptoms? As far as employee rights versus employer rights?
A: Typically, employees can only refuse to work if they believe they are in imminent danger. OSHA defines “imminent danger” as “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” Most work environments do not meet the threshold of an “imminent danger” standard, but each employer will need to determine on a case by case basis whether an employee is able to refuse work. It is also worth noting that employees may be protected under Section 7 of the National Labor Relations Act for discussing the safety of the workforce with other employees and participating in a concerted refusal to work in unsafe condition.