Since we first covered it a few weeks ago, the outbreak of coronavirus (COVID-19) has had an unprecedented impact and is no longer simply making headlines. It has now begun interrupting the flow of business – impacting financial markets, disrupting travel plans, and forcing the cancellation of meetings and events. (To the great disappointment of many sports fans, even landmark events such as the NCAA March Madness college basketball tournament and the Masters will not go on as planned this year). Seemingly nothing has been left untouched.
All this leaves many employers wondering – what does this mean for my workforce, and how can I plan? Ashley Hager covered many topics during our complimentary webinar, Managing Your Workforce During a Pandemic, on March 9, and in this blog series, we will address many of the issues employers may face under the various federal and state laws governing employment as the outbreak continues.
Occupational Safety Considerations for COVID-19
One of the first things that likely comes to mind for employers thinking about health and safety in the workplace is the federal Occupational Safety and Health Act (“OSH Act”), and for good reason: maintaining compliance with the primary federal law governing worker health and safety in the United States in uncharted territory can seem daunting. Below, we review the guidance that the Occupational Safety and Health Administration (“OSHA”) has offered so far related to COVID-19; we outline some of OSHA’s existing standards that may apply; and finally, we address a few other common OSHA-related questions.
OSHA Guidance on Coronavirus
First, although several industry groups and politicians have publicly urged OSHA to issue an emergency temporary infectious disease standard, as of the date of this blog post’s publication, there is not a specific OSHA standard covering the coronavirus. However, OSHA recently issued a 35-page Guidance on Preparing Workplaces for COVID-19. Among other things, the Guidance offers suggested steps for all employers to protect workers from exposure to and infection with COVID-19, such as developing an infectious disease preparedness and response plan and implementing workplace controls like safe work practices and personal protective equipment (“PPE”), among others. The Guidance goes on to divide job tasks into four risk exposure levels: very high, high, medium, and lower risk, with “the four exposure risk levels in the shape of a pyramid to represent probable distribution of risk” and offers additional suggestions based on each level of risk. OSHA opines that most American workers likely fall in the lower risk or medium categories, although the determination will be fact-specific. Note that while it is informative, the Guidance is not a standard or regulation, and creates no new legal obligations.
Even though there is not (yet) any binding standard from OSHA related to COVID-19, employers are not immune from OSHA compliance in the face of the outbreak. OSHA has indicated that its guidance on pandemic influenza may provide insight absent anything specific to coronavirus. More importantly, as OSHA itself has indicated, employers should be aware that multiple existing OSHA standards may be implicated by the risk and presence of coronavirus in the workplace. These may include, for example:
- The General Duty Clause, Section 5(a)(1) of the OSH Act, 29 U.S.C. § 654(a)(1). This 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.” OSHA may cite an employer under the general duty clause if the employer allows or directs a known infected employee to come to work and expose other employees to the risk of infection.
- OSHA’s PPE standards (in general industry, 29 C.F.R. § 1910 Subpart I). These standards may require using gloves, eye and face protection, and respiratory protection, among other things, in appropriate circumstances.
- OSHA’s Hazard Communication standard (in general industry, 29 C.F.R. 1910.1200). This and other applicable OSHA chemical standards require employers to protect their workers from exposure to hazardous chemicals – which may be present in many common chemicals used for cleaning and disinfection.
OSHA has also identified several additional general industry standards as potentially relevant, including standards like those governing access to employee exposure and medical records in 29 C.F.R. § 1910.1020 and sanitation in § 1910.141. Further, employers in one of the 28 states operating an OSHA-approved state plan may be subject to additional requirements (for instance, the Cal/OSHA Aerosol Transmissible Diseases standard).
Are COVID-19 Cases OSHA-Recordable?
Employers are required under OSHA’s recordkeeping regulations to record certain illnesses on the employer’s OSHA Form 300. While the recordkeeping regulations generally exempt the “common cold and flu,” COVID-19 is not considered a common cold or flu. OSHA’s current guidance, as of this blog post‘s publication, indicates that “COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties.” But, OSHA has indicated that employers are only responsible for recording cases of COVID-19 if all of the following are met:
- The case is a confirmed case of COVID-19 (OSHA recommends that employers consult the CDC for additional guidance as to testing and confirmed results, and for persons under investigation for possible infection);
- The case is work-related as defined by OSHA regulations (generally, an illness is work-related for OSHA purposes if it is more likely than not that a factor or exposure in the workplace caused or contributed to the illness); and
- The case involves one or more of OSHA’s general recording criteria (such as days away from work, job transfer, and medical treatment.)
Thus, an employee who contracts a confirmed case COVID-19 from, for example, an international vacation has likely not experienced a “work-related” injury. However, if that same employee then comes into work and infects a co-worker, the co-worker may be considered to have experienced a work-related illness, which would need to be included on the employer’s Form 300 log presuming one of the recording criteria is met.
OSHA’s Impact on Remote Workers
Many employers are allowing or encouraging employees to telecommute in response to the COVID-19 outbreak and may question whether and to what extent OSHA regulations (even beyond those potentially related to COVID-19) apply to their remote workers. OSHA’s current position is that it will not conduct at-home workplace inspections and that it will generally not hold employers liable for at-home safety issues. However, employers’ other health and safety obligations remain intact, even for remote employees. Employers also retain responsibility for hazards caused by materials, equipment, or work processes the employer provides or requires to be used in an employee’s home.
In the case of an injury sustained at home, OSHA will consider an injury “work-related” if it both occurs while the employee is performing work for pay in their home and is directly related to the performance of work, rather than to the general home environment or setting. Employers are thus required to keep records of work-related injuries (and update their OSHA Form 300 logs) that otherwise meet the recordability criteria suffered by remote workers. So, employers should encourage all remote employees to report workplace injuries and unsafe working conditions and notify them of the procedures to do so.
Finally, given the constant influx of news and information (and, sometimes, misinformation) that employees may be hearing, reading, or discussing, employers should keep in mind the OSH Act’s anti-retaliation provision, which prohibits employers from retaliating against workers for raising concerns about safety and health conditions. OSHA’s current position is that most U.S. workers remain at a low risk for exposure. So, maintaining a calm presence in the face of employee concerns can go a long way in providing reassurance to worried workers (and avoiding a potential retaliation claim).
Stay tuned for additional insights in the next post in our coronavirus series. In the meantime, please reach out to a Troutman Sanders labor and employment attorney for guidance about COVID-19 and OSHA compliance specific to your workplace.