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Coronavirus Disease 2019 and the Occupational Safety and Health Act: OSHA Update No. 2 – Essential Workers

Our first Alert, published on Jan. 31, 2020, provided general information on the Occupational Safety and Health Administration (OSHA) requirements and steps for employers to consider as the Coronavirus Disease 2019 (COVID-19) was just starting to appear in the United States, and before work shut down and shelter orders were in place. This Update will provide additional information to be considered by employers of essential workers who are required to work. It will address the Federal OSHA standards that apply to workplace safety and recording requirements and the Cal-OSHA standard for Aerosol Transmissible Diseases, which is applicable to COVID-19.

Federal OSHA has three primary requirements that come into play for employers addressing the spread of the COVID-19 virus: (1) the general duty clause; (2) personal protective equipment; and (3) recording and reporting requirements.

Federal OSHA does not have a standard that directly addresses the spread of aerosol transmissible diseases such as COVID-19, and in an enforcement action, Federal OSHA may rely upon the general duty clause of the OSH Act. The general duty clause is used when there is no standard that addresses the specific hazard at issue and is often used in cases of worker fatalities.  It states that “[e]ach employer shall furnish to each of his employees 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 to his employees.” OSHA’s website indicates that the general duty clause would apply and has published a Guidance for Preparing Workplaces for COVID-19. The federal guidance is similar to the Cal-OSHA requirements, which are discussed below, and employers may do well to consider both in determining the extent of their obligations under the general duty clause.

OSHA’s Personal Protective Equipment (29 CFR 1910 Subpart I) standard requires employers to provide gloves, eye and face, and respiratory protection. OSHA has issued enforcement guidance to its regional offices to address the shortage of the N95 filtering facepiece respirators. The guidance states that all health care providers that are providing direct care of patients should be practicing infection control procedures, including engineering and administrative controls, work practices and the proper use of PPE. In order to help alleviate the shortage of N95 masks, OSHA is exercising enforcement discretion and allowing employers to avoid the annual fit testing for respirators as long as they take other actions and show a good faith effort to comply with the PPE standard.

OSHA’s Recording and Reporting standard (29 CFR 1904) requires employers to record work-related injuries and illnesses and report to OSHA within 24 hours of learning of an employee hospitalization and within eight hours of learning of an employee death. OSHA’s recent guidance for complying with the standard states a case may be recordable if it is a confirmed case, it meets the other criteria for recording (e.g., medical treatment, days away from work) and is work-related. There are two aspects to “work related”: (1) the illness itself, and (2) the means by which it was acquired. The common cold and flu are not work-related, but other aerosol transmissible illnesses may be. To be work-related the illness had to be acquired because of work-related duties. Three examples: (1) a worker with flu-like symptoms misses days at work, seeks medical treatment, but the diagnosis is common flu – not recordable; (2) an accountant with flu-like symptoms misses days at work, seeks medical treatment, and the diagnosis is COVID-19 – not recordable because the illness was not acquired as a result of their job duties; and (3) an emergency medical technician misses days at work or seeks medical treatment, and the diagnosis is COVID-19 – recordable because their acquisition was most likely related to their job duties.

For employers in California, Cal-OSHA Aerosol Transmissible Diseases (ATD) Standard (Cal Code Regs. tit. 8, § 5199) is applicable to COVID-19. Cal-OSHA has published a guide to compliance similar to the federal guide, but because California has a standard, it is more comprehensive, and employers outside of California may want to consider it as a resource to meet their obligation under Federal OSHA. The California standard applies to hospitals, medical offices, and other health care facilities, medical transport, labs, and public facilities such as jails and shelters. The standard requires employers to create an exposure plan which includes a list of all high-hazard procedures, tasks which require respirators, source control measures, and procedures for communicating and training. The employer must use engineering and work practice controls to minimize exposure to ATDs, use PPE, and develop decontamination procedures. Work practices may include, but are not limited to, handwashing and gloving procedures; the use of anterooms to provide patient separation; and cleaning and disinfecting contaminated surfaces and articles. The standard has specific requirements for laboratories, respiratory protection, medical services, training and recordkeeping.

The Federal OSHA website and the Cal OSHA website are resources for employers attempting to comply with the legal requirements as well as all employers with a general interest in keeping their work sites safe and employees from being exposed to COVID-19.

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About this Author

Michael G. Murphy, Greenberg Traurig Law Firm, Orlando, Labor and Employment, Real Estate and Construction Law Attorney
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Michael Murphy is a board certified construction lawyer who focuses his practice on defects, design claims, delay, disruption and acceleration claims, lien foreclosures, and arbitration on behalf of owners, developers, contractors and subcontractors. He reviews and draft construction contacts. He advises clients in the construction industry on OSHA compliance issues, workplace accident and fatality investigations, and contest of citations through trial. He also practices in the area of commercial litigation.

Michael has a Bachelor of Science in...

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