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OSHA Considerations and COVID-19
April 01, 2020
Even though OSHA has advised that no specific standard covers the novel coronavirus, human resource and safety personnel must be mindful of the generally-applicable standards that might apply. In addition to recording requirements on OSHA 300 logs, there are five standards that merit particular attention in the COVID-19 context.
 
Standard 1
Personal Protective Equipment ("PPE") standards require the use of gloves, eye and face protection, and respiratory protection when working conditions require such use. These standards generally are found in 29 CFR 1910 Subpart I.
 
When respirators are required, employers must implement a comprehensive respiratory protection program under the Respiratory Protection standard at 29 CFR 1910.134. Because of the COVID-19 outbreak, OSHA has issued additional guidance that permits employees to use respirators above the required N95 standards, such as N99 and N100 respirators, and perform annual fit testing in a way that does not destroy the respirator. See Enforcement Memos/ Temporary Enforcement Guidance - Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak (March 14, 2020).
 
Standard 2
The General Duty Clause at 29 USC 654(a)(1) requires employers to furnish to each worker “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." Employers with known COVID-19 risks and exposures who do not respond appropriately could be cited under this standard.
 
Standard 3
OSHA’s Bloodborne Pathogens standard at 29 CFR 1910.1030 applies to occupational exposure to human blood and other potentially infectious materials. Although this Bloodborne Pathogens standard rarely includes respiratory secretions that may transmit COVID-19, it offers a framework that may control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.
 
Standard 4
OSHA recordkeeping requirements at 29 CFR Part 1904 mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.
 
If an employee contracts COVID-19, it could be a recordable illness if three condition are met:
  1. The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
  2. The case is work-related, as defined by 29 CFR 1904.5; and
  3. The case involves one or more of the general recording criteria in 29 CFR 1904.7, e.g. medical treatment beyond first-aid, days away from work)
Employers in healthcare fields, such as nursing homes and hospitals, are most likely to fall under the work-related standard for COVID-19. But 29 CFR 1904.5(a) deems an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or aggravated a pre-existing injury or illness. And because of the broad definitions for “work environment” and “illnesses,” as well as the regulatory presumptions, OSHA 300 log requirements might apply more broadly in the case of the novel coronavirus.
 
To access the OSHA Enforcement Memo, “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)”, April 10, 2020, click here

Standard 5
OSHA prohibits discrimination or retaliation against employees who raise safety concerns with the above-cited standards. And OSHA's Whistleblower Protection Program enforces more than 20 industry specific federal laws protecting employees from retaliation for raising or reporting concerns about hazards or violations.
 
These protection apply to a variety of employment actions in addition to terminations. For instance, OSHA may protect employees who walk off the job over alleged safety issues, and so employers should consult labor and employment and OSHA counsel before taking any action in response to such events.
 
For further information on the applicability of OSHA standards to your business in these trying times, contact the COVID-19 Task Force and the Spilman OSHA Practice Group.
 
Labor & Employment Law Samuel M. Brock III
304.340.3888
sbrock@spilmanlaw.com Mark E. Heath
304.340.3843
mheath@spilmanlaw.com Dennise R. Smith
304.720.4076
dsmith@spilmanlaw.com