COVID-19 UPDATE: Guidance for Employers from OSHA

What does it mean to provide a “safe working environment” during a pandemic? In the face of COVID-19, every employer in the nation is asking this question right now.

The Occupational Safety and Health Administration (OSHA) has provided some guidance and created a website. However, there remains considerable confusion among employers about what the rules are in certain situations, and how they should be orchestrating a variety of workplace practices in a world — and workplace — suddenly turned upside down.

What follows is a quick summary of several things all employers need to keep in mind in the coming weeks (and months) as this pandemic continues to unfold.

Online Resources

OSHA has created a COVID-19 resource page with guidance for all employers. There is also specific guidance about respiratory protection, Personal Protective Equipment (PPE) standards, hazard recognition, and other emerging issues.

Bookmark it and monitor the site for updates and emerging guidance.

Recordkeeping

There is an evolving discussion about recordkeeping in this pandemic, and exactly what OSHA expects employers to do. In Guidance on Preparing Workplaces for COVID-19, OSHA states:

“While 29 CFR 1904.5(b)(2)(viii) exempts recordkeeping of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”

The employer’s obligation to record COVID-19 illnesses in the 300 log — or to report a COVID-19 illness or death directly to OSHA as soon as possible — is not crystal clear, and may rest primarily in how the employer interprets the words “on the job.” For now, all employers should keep track of any known COVID-19 illnesses in the workplace, and document all efforts to determine where and how exposure might have occurred.

Personal Protective Equipment

OSHA indicates in their guidance document that PPE and other controls may be required for some employees. The specific type of PPE is based on employee classification — low, medium, high, or very high risk of exposure to people known to be, or suspected of being, infected with COVID-19.

As everyone knows, there is currently a shortage of disposable N95 filtering facepiece respirators (FFR), and OSHA has issued new guidance that outlines specific enforcement discretion to allow for extended use and reuse of these respirators when necessary.

Even with this flexibility, employers will continue to face supply shortages, limited resources, and other operational restrictions that are directly associated with the COVID-19 pandemic — and therefore will also continue to face compliance challenges for PPE.

It is also worth noting that most other types of masks (e.g. surgical masks, dust masks, scarfs, etc.) do not block the COVID-19 virus due to its microscopic size.

The General Clause

OSHA highlights the General Duty Clause in their COVID-19 guidance about standards that may apply. The General Duty Clause is the requirement for all employers to provide “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 meet this obligation, OSHA wants all employers to develop an infectious disease response plan, including all the policies and procedures necessary to facilitate the “prompt identification and isolation of sick people.”

More To Come

There is currently uncertainty about many things, and employers are encouraged to monitor OSHA’s COVID-19 Resource webpage and do the best they can to comply with emerging recommendations.

In the meantime, if you have any questions about how you should address any pandemic-related compliance challenges, feel free to contact me.

About the Author: James Laboe

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