The federal Occupational Safety and Health Administration (OSHA) and certain state plan safety regulators have issued guidance regarding potential workplace hazards resulting from exposure to COVID-19. This article discusses the content and implications of the new guidance, as well as related guidance from the Center for Disease Control (CDC).
OSHA, which regulates worker health and safety in the 22 states that do not have approved state plans, has published guidance regarding the protection of workers from COVID-19. Although the agency has not promulgated a regulation that specifically addresses COVID-19, OSHA identifies several regulatory standards that apply to the protection of workers from infectious disease hazards, including:
- 29 C.F.R. 1910, Subpart I – Personal Protective Equipment (PPE)
- 29 C.F.R. 1910, Subpart J – General Environmental Controls
- 29 C.F.R. 1910, Subpart Z – Toxic and Hazardous Substances
- 29 C.F.R. 1904 – Recordkeeping and Reporting Occupational Injuries and Illnesses
- Section 5(a)(1) of the Occupational Safety and Health Act – General Duty Clause
OSHA makes clear that appropriate transmission control measures “depend on the type of work being performed and exposure risk, including potential for interaction with infectious people and contamination of the work environment.” In order to determine what measures are most appropriate and effective for a given employer, the agency’s guidance states that “employers should adapt infection control strategies based on a thorough hazard assessment, using appropriate combinations of engineering and administrative controls, safe work practices, and personal protective equipment (PPE) to prevent worker exposures.” For additional information, OSHA’s guidance refers employers to the CDC’s COVID-19 interim guidance to businesses and employers and guidance regarding risk assessments in order to determine the potential for infection at their individual facilities and corresponding control measures that may be appropriate.
OSHA also makes clear that certain industries and may experience elevated exposure risk due to the higher likelihood of interaction with potentially infected individuals. These industries may be subject to additional regulations at the federal, state, or local level, and include:
- Health care
- Death care
- Airline operations
- Border protection
- Solid waste and wastewater management
More broadly, OSHA requires employers to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” If an employer has reason to believe there is a risk of exposure or transmission of COVID-19 at the workplace, it may have a duty to take measures in order to mitigate this hazard. The necessary corrective measures will vary by circumstance and the nature of the workplace. They may include authorizing remote work, partial closures, and providing appropriate PPE.
Meanwhile, certain state plan occupational safety and health agencies have issued guidance regarding compliance with their own unique safety standards. For example, on March 6, 2020, the California Department of Occupational Safety and Health (Cal/OSHA) released Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease. These guidelines highlight the need for certain employers, including health care providers and laboratories, to comply with the California Aerosol Transmissible Diseases (ATD) Standard.
Finally, employers may receive reports from concerned employees regarding exposure risks. Federal and state laws prohibit retaliation against employees for making reasonable and good faith reports regarding workplace safety issues. Thus, while some employee concerns may not be well-founded, employers should individually consider the veracity and seriousness of each concern or complaint and avoid taking adverse action based on employee reports.
In light of the above guidance and referenced regulatory standards, employers should consider undertaking hazard and compliance assessments to determine whether measures to protect employees from COVID-19 beyond those currently in place are appropriate.