Coronavirus Disease 2019 ("COVID-19") is affecting U.S. businesses in a variety of ways and will continue to do so for the foreseeable future. Impacts include telework and employee absenteeism, changes in consumer demands, and disruptions in supply and delivery chains. In response to growing concerns regarding COVID-19, the Occupational Safety and Health Administration ("OSHA") recently issued guidance documents intended to help employers plan for and respond to workplace risks. The first guidance document was released on March 9, 2020, and entitled Guidance on Preparing Workplaces for COVID-19 ("COVID-19 Guidance"). On March 14, 2020, OSHA issued the second guidance document, entitled Temporary Enforcement Guidance, focused on the use of filtering facepiece respirators by healthcare providers.
Given the novelty of the virus, OSHA does not have promulgated standards that specifically address COVID-19, and its COVID-19 Guidance contains non-enforceable recommendations. Those recommendations, however, are keyed to cornerstone OSHA requirements that are enforceable. Principally, OSHA's "general duty clause" requires employers to furnish "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." 29 U.S.C. § 654(a)(1).
OSHA also has confirmed that its Hazard Communication Standard ("HCS"), which requires employers to classify and communicate risks related to workplace chemical use, applies to COVID-19 scenarios—for example, use of common chemicals for workplace cleaning and disinfection. See 29 C.F.R. 1910.1200 et seq.
Importantly, employers must consider traditional OSHA recordkeeping and reporting requirements provided in 29 CFR Part 1904. COVID-19, unlike the common cold and influenza, is not exempted from such requirements. Specifically, qualifying employers must record on their OSHA 300 log cases of COVID-19 amongst their workers if:
- It is a confirmed case of COVID-19 (see Centers for Disease Control and Prevention ("CDC") information on case status);
- The case is work-related, meaning an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness (see 29 CFR 1904.5); 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).
OSHA also requires all employers to report any workplace incident that results in a fatality (within 8 hours) or an in-patient hospitalization (within 24 hours). Only formal admissions to the in-patient service of a hospital or clinic for care or treatment are reportable, and employers should review potential exceptions in 29 CFR 1904.39; for example, illnesses solely contracted on commercial or public transportation systems may not be reportable, but may be recordable.
Employers should carefully consider an employee's work duties and environment, and the circumstances surrounding an individual case, in undertaking the fact-specific inquiry of whether to record and report, and consider such an analysis to be guided by their overarching obligations to make good-faith and non-arbitrary determinations consistent with OSHA requirements.
Recognizing the broad scope of the general duty clause and HCS, OSHA's COVID-19 Guidance provides a suite of recommendations to assist employers in assessing risk and determining appropriate planning, prevention, and control measures in the workplace. OSHA makes clear that employers must tailor their COVID-19 policies and preparations to their specific facilities and workforces. As a gating issue, employers must assess the respective risk level their work presents; employers in industries or communities with low risk of exposure must prepare differently than employers with medium, high, or very high risk of exposure to known or suspected sources of COVID-19. OSHA has identified healthcare, deathcare, laboratory, airline, border protection, and solid waste and wastewater management as industries on the higher end of the risk spectrum.
While each employer's actions to address the COVID-19 threat must be tailored to its workplace risk profile, OSHA's COVID-19 Guidance sets forth general measures all employers should implement, as follows.
- 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 (i.e., engineering controls) to providing personal protective equipment.
Within those broad categories of actions applicable to all employers, OSHA offers some practical steps employers may take to implement their COVID-19 procedures. For example, if isolating sick employees, most employers need not have special isolation rooms; designated areas behind closed doors may serve that purpose. And, to implement basic infection prevention in workplaces that are open to the public, employers should provide tissues, trash receptacles or other hygiene products to customers to minimize exposure to workers.
As employers frame and update their individual COVID-19 plans and policies, additional examples provided in the COVID-19 Guidance may prove useful. Employers also should consider and incorporate guidance from other agencies (including the CDC and state and local health agencies) into their protocol. For example, in addition to providing guidance to employers regarding best practices to mitigate and handle exposure to COVID-19 in the workplace, the CDC recently released specific mitigation guidance for certain communities that have experienced the highest rates of COVID-19 transmission.
Recognizing the high risk and essential nature of the healthcare industry in particular, OSHA's Temporary Enforcement Guidance provides some flexibility to healthcare providers relating to the normally stringent requirements associated with filtering facepieces and respirators.
While OSHA appropriate respiratory protection is required for all healthcare personnel providing direct care of patients with known or suspected COVID-19, in recognition of the current domestic supply shortages of N95 filtering facepiece respirators, it provides three methods by which healthcare providers may conserve respirator supplies.
- First, such employers may supply healthcare providers with another respirator of equal or higher protection, including N99 or N100 filtering facepieces (among other alternatives identified in the Temporary Enforcement Guidance).
- Second, OSHA is allowing healthcare employers to change the method of fit testing from a destructive method (i.e., quantitative) to a non-destructive method (i.e., qualitative).
- Finally, OSHA instructed its field offices to employ enforcement discretion—in other words, refrain from enforcement—related to its annual fit testing requirements. This means that healthcare providers may temporarily suspend the annual fit testing of N95 filtering facepiece respirators to conserve the supply of respirators for use in priority situations.
As many U.S. workplaces have started to encourage employees to work remotely, it also is important to consider OSHA-related implications of telework directives. OSHA distinguishes between home offices (areas of an employee's home in which an employee conducts office work activities such as research, reading, and writing) and home-based worksites (areas of an employee's home where the employee "performs work of the employer," e.g., home manufacturing operations). Since home offices are the more typical telework setting, we focus on those scenarios here. OSHA has stated that it will not inspect—and does not expect employers to inspect—the home offices of employees, and that OSHA will not hold employers liable for employees' home offices. However, employers required to record work-related injuries and illnesses continue to be responsible for keeping such records, regardless of whether such injuries or illnesses occur while an employee is working from home or at a company facility. Any cases of COVID-19 determined to meet the three criteria set out above (confirmed case, work-related, and one or more of the 29 CFR 1904.7 recording criteria) that occur at an employee's home should be recorded on the OSHA 300 log of the establishment with which the employee is associated.
The events of recent days and weeks have shown that COVID-19 will impact all U.S. industries and employers. Employers must carefully assess their facilities and employees' particular risks of exposure, and develop or modify policies and procedures that account for those nuances, consistent with the OSHA regulatory framework. OSHA's COVID-19 Guidance is a useful tool as employers strive to contend with the risk and ramifications of COVID-19, and its Temporary Enforcement Guidance provides welcome flexibility to assist the healthcare industry in addressing one of the key emerging challenges to the safety of its workforce.
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