COVID-19: OSHA Pronouncements and Workplace Hygiene

April 20, 2020

The Coronavirus Disease 2019 (COVID-19) pandemic has forced businesses to adjust their safety precautions to protect both their employees and customers. Workplaces will experience, and likely already have experienced, absenteeism, the need for social distancing, changes in patterns of commerce, and interrupted supply and/or delivery.

In response to the COVID-19 pandemic, OSHA released its Guidance on Preparing Workplaces for COVID-19.[1] Currently, there is no specific OSHA standard covering COVID-19; however, certain OSHA requirements do apply to preventing occupational exposure to COVID-19, such as the General Duty Clause (described below), recordkeeping requirements, and use of personal protective equipment (PPE).

General Duty Clause. OSHA’s General Duty Clause, found in section 5(a)(1) of the Occupational Safety and Health Act of 1970, requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” See 29 U.S.C. § 654 (a)(1).

Employers need to consider how best to decrease the spread of COVID-19 and lower the impact in their workplace, including reducing transmission among employees and maintaining healthy business operations and a healthy work environment. The CDC released its Interim Guidance for Businesses and Employers,[2] which details the best practices for maintaining a healthy work environment during COVID-19. OSHA made clear in its Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), that employers should frequently check the Center for Disease Control (CDC) COVID-19 guidance, as these are the guidelines by which OSHA will abide in conducting any COVID-19-related inspections.[3] In this regard, the CDC often updates its website publications, such as its “Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.”[4]

Employers should tailor their COVID-19 policies and preparations to their specific facilities and work forces.[5] Employers must first classify their workers’ risk of occupational exposure to COVID-19.[6] For example, precautions for employees with a high risk of exposure, such as healthcare workers with an elevated potential for exposure to known or suspected COVID-19 patients, would understandably be different than those precautions needed for workers with a lower exposure risk, such as workers who come into contact with the general public, like retail workers.[7]

The following are steps all employers can take to reduce workers’ risk of exposure to COVID-19:

- Develop a comprehensive infectious disease preparedness and response plan, including identifying a workplace coordinator who will be responsible for COVID-19 issues and their impact on the workplace.

- Implement basic infection prevention measures: proper hand hygiene, routine cleaning and disinfecting practices, and the use of personal protective equipment (PPE), etc.

- Develop policies and procedures for prompt identification and isolation of sick people, such as temperature testing for employees.

- Develop, implement, and communicate about workplace flexibilities and protections, e.g., distribute information about the Families First Coronavirus Respone Act (FFCRA) sick leave provisions.

OSHA may issue citations to enforce an employer’s general duty to provide a safe place of employment if the protective measures implemented by an employer are not as protective as those recommended by the CDC. However, at this time, OSHA has directed the primary focus of inspections to be on workplaces that pose a high to very high risk of occupational exposure, and that hazard alert letter recommendations should be issued prior to the issuance of any citations.

Recordkeeping Requirements. OSHA’s recordkeeping requirements, 29 C.F.R. § 1904, mandate that covered employers record certain work-related injuries and illnesses in their OSHA 300 Log. OSHA’s Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19),[8] specifies that COVID-19 is a recordable illness and that employers are responsible for recording cases of COVID-19 if:

1. The case is a confirmed case of COVID-19;

2. The case is work-related, as defined by 29 C.F.R. 1904.5; and

3. The case involves one or more of the general recording criteria set forth in 29 C.F.R. 1904.7, such as medical treatment beyond first aid or days away from work.

Employers in high exposure risk jobs, including the healthcare industry, emergency response organizations, and correctional institutes, must continue to make work-relatedness determinations pursuant to 29 C.F.R. § 1904. However, OSHA’s recordkeeping guidance acknowledges that it may be difficult for employers who are not involved in those specific industries to determine whether an individual’s positive COVID-19 test result was due to exposure in the workplace, especially where there is ongoing community transmission.

As such, OSHA has relaxed its recordkeeping requirements for employers, other than those in the healthcare industry, emergency response organizations, and correctional institutions, announcing that it will not enforce its recordkeeping requirements, except where:

1. There is objective evidence that a COVID-19 case may be work-related, such as a group of employees who work closely together all contracting COVID-19 without an alternative explanation; and

2. The evidence was reasonably available to the employer, e.g., information learned from employees or discovered by the employer in the ordinary course of managing its business and employees.

OSHA’s guidance and enforcement policies in response to COVID-19 are aimed at helping employers focus their response efforts on implementing good hygiene practices in their workplaces. Employers must carefully assess their facilities and their employees’ risk of exposure in order to develop or modify policies consistent with OSHA and the CDC’s recent guidance.

The information contained in this post is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice. Any specific questions about this information should be directed to an attorney.

FOOTNOTES:

[1] https://www.osha.gov/Publications/OSHA3990.pdf

[2] https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

[3] https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirus-disease-2019-covid-19#attach1

[4] https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html

[5] https://www.osha.gov/Publications/OSHA3989.pdf

[6] https://www.osha.gov/SLTC/covid-19/hazardrecognition.html#risk_classification; https://www.osha.gov/Publications/OSHA3993.pdf

[7] https://www.osha.gov/Publications/OSHA3996.pdf

[8] https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19