May 26, 2020

May 26, 2020

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OSHA Offers Employers ‘Guidance on Preparing Workplaces for COVID-19’

The Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) have issued guidance to help employers monitor and respond to the spread of novel coronavirus (COVID-19).

OSHA has a webpage dedicated to COVID-19 that provides background on the virus and identification of potential exposure hazards, as well as details some of OSHA’s expectations for employers in responding to the potential risk of COVID-19 infection. OSHA also has released a detailed guidance document for employers: Guidance on Preparing Workplaces for COVID-19.

General Duty Obligations

While noting that the document is “not a standard or regulation,” OSHA reminds employers of their pre-existing general duty obligations under the Occupational Safety and Health Act to provide a workplace for employees that is “free from recognized hazards.”

OSHA also states that the guidance identifies “practical ways” for employers to address potential health risks from coronavirus in the workplace.

OSHA Recommendations

OSHA’s recommendations include:

  • Developing and implementing an infectious disease and preparedness response plan that considers employees’ risk of exposure and incorporates recommendations from federal, state, local, tribal, and other territorial health agencies;

  • Implementing good hygiene and infection control practices, including, in part, the frequent promotion of hand washing, requirement of employees to stay home when they are sick, reminders on respiratory etiquette, and routine cleaning and disinfecting procedures;

  • Developing and implementing procedures for identifying and isolating potentially infectious individuals (e.g., customers, vendors, employees, and so on);

  • Actively communicating with employees about the company’s infectious disease and preparedness response plan and related procedures; and

  • Implementing appropriate controls, which should take into consideration OSHA’s “hierarchy of controls” (i.e., framework for managing hazards in which the most optimum control method is viewed to be the removal of a hazard in lieu of controlling it by other means) and the potential for exposure to COVID-19.

Appropriate controls identified by OSHA may include engineering controls (such as high efficiency air filters, physical barriers, and negative pressure in ventilation) or administrative controls (such as maintenance of “flexible policies” that permit employees to stay home when needed because they are sick or to take care of a sick family member and minimizing worker contact through use of remote work and virtual communications). To determine what specific controls are needed, OSHA instructs employers to assess the “worker risk of occupational exposure,” which will vary by industry type and the likelihood of employees encountering individuals that are known to be or suspected of being infected with COVID-19 while completing job tasks.

To assist employers with evaluating the risk of occupational exposure and needed controls, OSHA categorizes employee exposure risks into four levels, consisting of “very high,” “high,” “medium,” and “lower” risk. While most workers in the United States will fall into the lower exposure risk level, OSHA’s guidance indicates that all employers should develop and implement an infectious disease preparedness and response plan and corresponding infection prevention measures. However, employers with employees that have a medium, high, or very high risk level may have an obligation to implement additional precautionary measures (e.g., use of engineering controls or administrative controls to prevent exposure to COVID-19).

A comparison of OSHA’s risk levels and corresponding recommendations on the precautions employers should take is provided in our chart.

OSHA’s guidance also instructs employers to follow existing safety standards, such as the Personal Protective Equipment (PPE) and Bloodborne Pathogens (BBP) standards to prevent and minimize occupational COVID-19 exposures. OSHA also specifically indicates that employers may need to provide employees with PPE such as gloves, eye and face protection, and respiratory protection when workers are exposed to high or very high risk levels. Similarly, while noting that the BBP standard is not directly applicable to respiratory secretions that may transmit COVID-19, OSHA suggests that employers should use the BBP standard as “a framework” to “help control some sources of the virus.”

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Significantly, because OSHA has taken a position in the guidance document that employers have an obligation under the General Duty Clause and existing OSHA standards to take action to address potential health risks from COVID-19 in the workplace, it may take a future position that an employer’s failure to develop and implement measures identified in the guidance constitutes a health and safety violation. Therefore, employers should actively monitor potential employee exposures to COVID-19 as a result of the COVID-19 outbreak, read and be familiar with OSHA’s guidance, and implement steps as appropriate to prevent potential exposures to COVID-19 in the workplace.

Jackson Lewis P.C. © 2020

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About this Author

Tressi Cordaro, Occupational safety health attorney, Jackson Lewis, enforcement agency lawyer, labor litigation legal counsel
Principal

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested...

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Cressinda Schlag Environmental Health Lawyer Jackson Lewis Austin
Associate

Cressinda (“Chris”) D. Schlag is an associate in the Austin, Texas, office of Jackson Lewis P.C. Her practice focuses on environmental health and safety matters involving legal and regulatory compliance as well as federal and state government enforcement actions.

Before becoming an attorney, Ms. Schlag obtained a graduate degree in occupational health and safety and environmental management and worked as an environmental health and safety engineer and consultant with a variety of industries, including, for example, oil and gas, chemicals manufacturing and supply, agriculture, aerospace, construction, and metals and coating manufacturing.  As an environmental health and safety professional, Ms. Schlag obtained extensive technical experience related to chemical risk management, hazardous materials management, property remediation, hazard mitigation, and regulatory compliance across a variety of industries. She also developed a strong business acumen and deep understanding of the complex challenges that employers face in developing regulatory compliant programs. In having both technical and legal experience, Ms. Schlag can anticipate compliance challenges and provide employers with astute guidance on how to comply with emerging laws, improve environmental health and safety programs, as well as defend against federal and state enforcement initiatives and actions.  

 Since graduating law school, Ms. Schlag has dedicated her practice to counseling and working with employers on a broad range of environmental health and safety matters, including, for example, development of effective strategies for resolving Occupational Safety and Health Administration (“OSHA”), U.S. Environmental Protection Agency (“EPA”), and U.S. Department of Transportation (“DOT”) enforcement actions; implementation of compliance audits and internal investigations; identification of effective strategies for managing worker health issues like communicable diseases; and provided training on emerging issues such as recordkeeping pitfalls, chemical risk management, emergency action planning, and how to conduct a serious incident investigation. She also gained valuable experience as in-house counsel at Whole Foods Market related to challenges with implementing compliance programs at scale, how to address environmental health and safety issues that also involve brand reputation risks (e.g., sustainability initiatives and green programs), and methods for mitigating risk in light of complex, patchwork, and evolving regulatory frameworks (e.g., state plastic reduction laws and state mandated training initiatives).

 ​Ms. Schlag routinely advises employers on federal and state regulatory initiatives, how government agencies are interpreting specific compliance obligations, and evaluates issued citations and penalties for purposes of determining the need to contest or appeal. She also proactively assists employers with development of comprehensive compliance strategies and represents her client’s interests in a variety of settings including rulemaking proceedings, administrative hearings, and in litigation.

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