04/17/2020 by Vandeventer Black LLP
The federal Occupational Safety and Health Administration (OSHA) is continuing to address safety concerns in the workplace due to the novel coronavirus known as COVID-19 by providing enforcement guidance to Compliance Safety and Health Officers (CSHOs) and Employers. So far in April 2020, OSHA released several enforcement memoranda concerning COVID-19. They can be accessed on OSHA’s Covid-19 website.
This article provides a brief summary of OSHA’s most recent guidance concerning COVID-19 in the workplace.
Guidance for Enforcing Respiratory Protection Standard
OSHA’s Respiratory Protection Standard requires that employers provide respirator equipment to employees when such equipment is necessary to protect their health. It also requires that employers establish and maintain a protection program for the respiratory equipment. OSHA has published three new enforcement guidance documents elaborating on how employers can comply with this standard during the COVID-19 pandemic.
First, on March 14th, OSHA published temporary guidance solely for healthcare personnel. The purpose of that guidance was to ensure that healthcare personnel who were in direct contact with COVID-19 patients had the proper respiratory protection. OSHA recommended that healthcare workers change their fit test method to preserve the integrity of N95 equipment, which would allow the equipment to be reused.
Following its March 2020 guidance for healthcare workers, OSHA published two memoranda on April 3, 2020, for all industries that already require employers to use respiratory protection equipment. Due to the shortage of N95 equipment, OSHA has now allowed these industries to use alternative respirators or to extend their use of respiratory equipment by reusing equipment and using expired equipment under certain specific circumstances that are explained in detail in the guidelines. Any alternative respirator used, however, must be on the National Institute for Occupational Safety and Health (NIOSH) approved list.
Worker Retaliation Reminder
On April 8, 2020, OSHA issued a national news release reminding all employers that it is illegal to retaliate against workers who report unsafe and unhealthy working conditions during the COVID-19 pandemic. Retaliation can consist of terminations, demotions, denials of overtime or promotion, or reduced hours/pay. Employees may file a complaint with OSHA if they believe that their employers retaliated against them for making safety complaints related to COVID-19.
OSHA’s Recordkeeping Requirements
OSHA already requires employers to report occupational diseases when they are work-related and when the case involves medical treatment or days away from work. On April 10, 2020, OSHA provided guidance stating that, for the coronavirus, it would not enforce the recording requirements against certain employers due to the difficulty of determining if a COVID-19 case is work-related. Instead, OSHA is encouraging employers to focus on implementing good hygiene practices and mitigating further COVID-19 infections. This enforcement waiver does not apply to the healthcare industry, emergency response organizations, or correctional institutions. Additionally, the waiver will not apply to employers when the following two situations exist: (1) there is objective evidence that a COVID-19 case may be work related and (2) objective evidence is readily available to the employer.
Interim Enforcement Response Plan
On April 13, 2020, OSHA published an Interim Enforcement Response Plan (the “Plan”) for Area OSHA Directors and their investigators on how to handle inspections, referrals, severe illness reports, and complaints due to COVID-19. The Plan provides instruction and guidance for all investigations and inspections related to COVID-19 and includes several procedure and sample attachments.
Importantly, OSHA recommends that, in most non-healthcare cases, its investigators should follow informal complaint and referral procedures. Therefore, for COVID-19 related complaints, it appears that OSHA will only conduct on-site inspections for fatalities and imminent danger exposures.
On April 6, 2020, OSHA published a poster highlighting ten steps all workplaces can take to reduce the risk of COVID-19. This OSHA poster is not mandatory. But it may be helpful for employers to remind employees to stay vigilant in the fight against COVID-19.
Any additional questions about COVID-19 in the workplace can be answered by the authoring attorney or another attorney from the Vandeventer Black Labor & Employment Law Group.