Over the past few months, the COVID-19 pandemic has brought the responsibility to ensure a safe workplace into sharp focus. When developing a plan for keeping employees safe as they return to the workplace, employers must review and comply with rules enforced by the U.S. Occupational Safety and Health Administration (OSHA) as well as applicable state and local rules, orders, and guidance. Below is an overview of OSHA rules in the context of COVID-19.
Over the years, OSHA has implemented dozens of standards (or rules) governing workplace safety, many of which cover specific industries, work environments, or hazards. Employers must examine workplace conditions to make sure they conform to applicable OSHA standards. While OSHA has no specific standard dedicated to COVID-19, there are OSHA standards that may come into play during a pandemic, including but not limited to:
- The General Duty Clause. This rule requires employers to provide a place of employment—free from recognized hazards that cause or are likely to cause death or serious physical harm. As it relates to COVID-19, the General Duty clause requires employers to take reasonable steps to prevent workplace exposure to the virus. This may include a combination of engineering controls (such as installing physical barriers), administrative controls to promote social distancing (such as blocking access to gathering areas and staggering shifts to minimize the number of workers in the workplace), providing and/or requiring PPE, and safety and health rules (such as requiring employees to wash their hands frequently and to wear face coverings).
- OSHA's Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I). Depending on the specific work task, setting, and exposure, these rules require using gloves, eye and face protection, respiratory protection, and other protective equipment.
- Respiratory Protection standard (29 CFR 1910.134). When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard.
- Hazard Communication standard (in general industry, 29 CFR 1910.1200). All employers with hazardous chemicals in the workplace must have labels and safety data sheets for their exposed workers and train these workers to handle the chemicals appropriately. This is important because some common products used for cleaning and disinfection as well as sanitizers and sterilizers may contain hazardous chemicals. If employees are required to use these products, the Hazard Communication standard may apply to those employees.
- Recordkeeping. Employers with more than 10 employees must keep records of work-related injuries and illnesses, unless they're classified under one of the partially exempt low-hazard industries. However, all employers must report to OSHA work-related injuries and illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye. Under OSHA's recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19 if:
- The case is a confirmed case of COVID-19, as defined by the CDC;
- The case is work-related as defined by 29 CFR § 1904.5; and
- The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
OSHA says employers should determine whether employee COVID-19 illnesses are work-related and thus recordable. If the criteria are met, COVID-19 should be coded as a respiratory illness on the OSHA Form 300. Because COVID-19 is an illness, if an employee requests that their name not be entered on the log, the employer must comply.
State OSHA laws may have additional recordkeeping requirements.
- Anti-retaliation rule. Employers are prohibited from retaliating against workers for raising concerns about safety and health conditions.
PPE (General Industry):
When engineering, administrative, and work-practice controls aren't feasible or don't provide sufficient protection, employers must provide PPE to their workers and ensure its proper use. The types of PPE required will be based on the risk of being infected with COVID-19 and job tasks that may lead to exposure. OSHA requires employers to pay for PPE when it is used to comply with OSHA standards. Employers are also required to train each worker on:
- What PPP is necessary and when
- How to properly put it on, adjust, wear and take it off
- The limitations of the equipment
- Proper care, maintenance, useful life, and disposal of the equipment
Face Coverings, Surgical Masks, and Respirators:
Both OSHA and the CDC recommend that employers encourage workers to wear face coverings at work, and some states and local COVID-19 orders are requiring individuals to wear them. Employers should keep in mind that cloth and similar face coverings are intended to prevent asymptomatic individuals from spreading potentially infectious respiratory droplets to others. They aren't intended to protect the wearer from COVID-19, aren't considered PPE for OSHA purposes, cannot be used in place of respirators or other PPE when such equipment is required, and aren't a substitute for social distancing.
If surgical masks are cleared by the U.S. Food and Drug Administration as medical devices and used to protect workers against splashes and sprays containing potentially infectious materials, surgical masks may be considered PPE. While they can help block large-particle droplets and can be effective for source control, surgical masks won't protect the wearer against smaller airborne transmissible infectious agents due to loose fit and lack of seal or inadequate filtration.
Respirators are a type of PPE used to prevent workers from inhaling small particles, including airborne transmissible or aerosolized infectious agents. They generally must be certified by the National Institute for Occupational Safety and Health (NIOSH). For the purposes of COVID-19, they are typically required for those employees who perform tasks that are at a high or very high risk of exposure, such as healthcare or emergency response workers.
There are currently 22 OSHA-approved State Plans that cover the private sector. The State Plans must have standards and enforcement programs that are at least as effective as OSHA's and may have more stringent requirements. If you are covered by a State Plan, ensure compliance with its specific requirements. Additionally, some states have approved emergency regulations and laws to impose additional requirements for employers to protect employees from COVID-19.
To help protect employees from COVID-19, all employers should comply with applicable OSHA standards, adhere to state and local rules and guidance, and develop and implement an infectious disease preparedness and response plan that considers and addresses the levels of risk associated with their employees' worksites and job tasks.