COVID-19 Response: OSHA and the Coronavirus
Los Angeles, Calif. (March 20, 2020) - The Novel Coronavirus Disease 2019, or COVID-19, has unleashed a plethora of legal issues for employers ranging from closing down businesses to employees working remotely from home. But some industries will have to remain open, which raises the potential for exposure to COVID-19. The virus is thought to spread mainly from person-to-person who are in close proximity (within 6 feet) through respiratory drops when an infected person coughs or sneezes.
In response to possible exposure to COVID-19, the United States Occupational Safety and Health Administration (OSHA) recently issued guidance for employers on how to handle the COVID-19 pandemic. OSHA’s guidelines rely in large part on previously issued guidance from the Center for Disease Control (CDC). On March 9, 2020, OSHA issued “Guidance on Preparing Workplaces for COVID-19,” which provides useful suggestion for employers. On March 14, 2020, OSHA issued a second article entitled “Temporary Enforcement Guidance,” which focuses on the use of respirators for the healthcare industry.
General Duty Clause
Because COVID-19 is so new, OSHA has not had time to issue official standards to address the virus. The recently issued guidelines are recommendations for employers, but are not enforceable in the same manner as an officially adopted regulation would be. However, OSHA’s “general duty clause” is enforceable. The general duty clause requires employers to furnish employment and a place of employment that are free from recognizable hazards that are causing or are likely to cause death or serious physical harm.
Considering the general duty clause, OSHA’s COVID-19 guidelines provide a number of recommendations to help employers assess risk and implement prevention control in the workplace. The guidelines make it clear that employers must tailor their COVID-19 plans to their specific industries. Healthcare workers, due to their close proximity with sick people, will have much stricter guidelines than a company with an office setting. High-risk industries include healthcare, postmortem, airline, laboratory, waste management, and border protection.
OSHA’s guidelines set forth the following general requirements for all employers:
- Develop an infectious disease preparedness and response plan;
- Prepare to implement basic infection prevention measures such as promoting proper hygiene and implementing routine cleaning and disinfecting practices;
- Develop policies and procedures for prompt identification and isolation of sick people, if appropriate;
- Develop, implement, and communicate about workplace flexibilities and protections; and
- Implement workplace controls, ranging from physical barriers to protect against the spread of COVID-19 to providing personal protection equipment.
OSHA’s recently issued COVID-19 guidelines caused some confusion as to whether a case of the virus must be recorded and reported to OSHA. Unless exempt, employers must record work-related injuries or illnesses. OSHA has provided specific guidance in the case of a worker diagnosed with COVID-19 for recording purposes:
- The case is a confirmed case of COVID-19 (usually a specific diagnoses or confirmed test result);
- The case is work-related, as defined by 29 CFR 1904.5 (injury/illness caused by an event or exposure at the workplace); and
- The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).
For example, a worker who is infected due to non-work related travel would not be recordable, but if that employee comes to work and infects another employee at the workplace that would be recordable.
A COVID-19 case would be reportable to OSHA only if the employee is hospitalized as an in-patient (out-patient hospital care is not reportable), or if the employee dies as a result of contracting COVID-19 from performing work-related duties. Normal criteria for reporting apply to COVID-19 cases. Employers must report any work-related death within 8 hours and any serious injury within 24 hours. Employers who are exempt from recordkeeping are required to report a serious injury or death.
Many employers are encouraging employees to work from home. Thus, OSHA standards must be considered for employees working remotely. OSHA has stated that it will not inspect the home offices of employees. Further, OSHA does not require employers to inspect their employees’ home work spaces. However, employers that are required to record work-related injuries/illnesses must still keep such records as if the employee was working at the company’s workplace or facility. Any case of COVID-19 meeting the above three criteria should be recorded on the OSHA 300 log.
Employers’ Duties and Workers’ Rights
The Occupational Safety and Health Act prohibits employers from retaliating against workers for raising concerns about safety and health conditions. This would include concerns about how the employer is handling and implementing its safety program as it relates to COVID-19. Additionally, OSHA’s Whistleblower Protection Plan enforces the provisions of federal laws protecting employees from retaliation for raising or reporting concerns about hazards or violations. State run OSHA plans have similar protections. Employers should implement and rigorously enforce existing proactive anti-retaliation programs to receive and respond promptly to concerns about any workplace conditions and prevent retaliation against those employees who have raised such concerns.
COVID-19 will no doubt affect every employer in the United States, and every employer’s situation and workforce is unique. Employers should study the OSHA and CDC’s guidelines when implementing their workplace safety standards and preparedness plans.
Lewis Brisbois has formed a COVID-19 Attorney Response Team to help your business with the myriad legal issues arising from the outbreak. Visit our COVID-19 Response Resource Center to find an attorney in your area.
Steven G. Gatley, Partner
Peter T. Shapiro, Partner
- COVID-19 Response Resource Center
- Labor & Employment
- OSHA Safety & Health
- COVID-19: Labor & Employment