OSHA and COVID-19: Workplace Exposures, Citations and RecordingClient Alert
Employer Safety & Health Recommendations, Potential Citations, and Recording Workplace Exposures
The Occupational Safety and Health Administration has issued guidance for protecting employees against workplace exposures to COVID-19. Employers should also be aware of OSHA standards which may apply to workplace exposures and when a case of COVID-19 is OSHA recordable.
OSHA has issued its Guidance on Preparing Workplaces for COVID-19. The Guidance sets forth strategies for minimizing workplace exposures. Note that the Guidance is not an OSHA standard or regulation and does not create new legal obligations on the part of employers. However, it provides both practical advice for protecting employees and some insight as to when OSHA may issue a General Duty Clause citation in the event of a recordable case of COVID-19 (see Citations below).
OSHA recommends that employers assess the risk level for each job classification, taking into consideration an employee’s contact or close proximity with co-workers, the general public, and those at higher risk for infection, among other factors. It is recommended that the employer then classify each job according to the following hierarchy:
Lower Exposure Risk (Caution): Jobs that do not require contact with persons known or suspected to be infected, or frequent close contact (within 6 feet) with the general public. Most employers will fall into this category.
Medium Exposure Risk: Jobs that require frequent or close contact with persons who may be infected with the virus but are not known or suspected COVID-19 patients. This category includes employees having frequent contact with international travelers or working in communities with ongoing COVID-19 transmission.
High Exposure Risk: Jobs with high potential for exposure to known or suspected sources of COVID-19, such as healthcare workers.
Very High Exposure Risk: Jobs with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures.
For all employers, OSHA recommends, in order of effectiveness, various engineering controls, administrative controls, and personal protective equipment. Additional proactive measures are recommended depending upon the risk classification. Employers should also have contingency plans for workplace outbreaks.
Though no OSHA standard specifically covers COVID-19, there are a number of existing standards which may apply to mitigating workplace exposures, as follows:
Personal Protective Equipment: Applicable PPE standards may include hand, eye, and face protection, as well as respiratory protection. When respiratory protection is necessary to protect employees, a respiratory protection program must be implemented. OSHA-mandated workplace hazard assessments should be reviewed and revised as necessary in light of employee exposure risks.
Bloodborne Pathogens: This standard may apply to occupations where there is reasonably anticipated contact with human blood or “other potentially infectious materials.” The latter term typically does not include general workplace exposure to others’ respiratory secretions (i.e., co-worker sneezes and coughs), but in such cases, the Bloodborne Pathogen Standard may provide additional guidance to employers for identifying exposure risks and implementing safety measures.
Hazard Communication: Though perhaps not an ordinary concern for most employers, the Hazard Communication Standard may come into play for employees now using cleaners, sanitizers, or sterilizers for workplace mitigation of COVID-19 exposure.
General Duty Clause: Section 5(a)(1) of the Occupational Safety and Health Act, better known as the General Duty Clause, requires employers to “furnish to each of his employees 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 its employees. The General Duty Clause is a catch-all requirement which provides OSHA with enforcement power when no specific safety or health standard applies to a given workplace hazard.
Note that 28 states have a state agency, as opposed to federal OSHA, which enforces workplace safety and health standards. Most such states adopt the federal OSHA standards in whole (or close to it), but some, such as California, have adopted a broad range of standards unique to the state. Employers in so-called “state-plan states” should keep abreast of state standards and guidance applicable to COVID-19.
A workplace injury or illness is not a prerequisite for the issuance of an OSHA citation, as an employer’s violation of any safety or health standard can lead to a citation. However, as it applies to COVID-19, both an OSHA inspection and citation are unlikely absent extraordinary circumstances, such as an employer’s failure to undertake any precautions to protect against workplace exposures followed by a workplace outbreak of COVID-19. In such a case, a citation alleging one or more violations of the standards identified above, and the General Duty Clause in particular, is possible.
Recording a COVID-19 Illness
Employers must record work-related illnesses on their OSHA 300 logs. COVID-19 can be a recordable illness if an employee is infected during the performance of work-related duties. However, the fact that an employee is diagnosed with COVID-19 and/or first experiences symptoms at work does not make the case recordable. As with any injury or illness, the case is not recordable unless it is: (i) work-related; (ii) a new case; and (3) results in death, missed or restricted work, job transfer, or medical treatment beyond first aid, or constitutes “a significant injury or illness diagnosed by a physician or other licensed health care professional.”
With the widespread transmission of COVID-19 and the many non-work related avenues for exposure, it is unlikely that an isolated case or two of COVID-19 in a workplace could be fairly characterized as “work-related” (the first of the above three criteria). Thus, it is unlikely that the employer would have to record the case on its OSHA 300 log. By contrast, if there is a workplace outbreak among several or more employees who are in close contact with each other, OSHA may consider the cases to be work-related and, therefore, recordable if the second and third criteria are also met.
As a final point, a COVID-19 case is not recordable unless it is a “laboratory-confirmed” case. The Centers for Disease Control and Prevention (CDC) has developed a classification system for reporting and tracking the virus, as follows:
Person Under Investigation (PUI): Having sufficient symptoms to cause a healthcare provider to conduct testing.
Presumptive Positive: At least one respiratory specimen that tested positive for the virus that causes COVID-19 at a state or local laboratory.
Laboratory Confirmed: At least one respiratory specimen that tested positive for the virus that causes COVID-19 at a CDC laboratory.
If an employer’s case is not a “laboratory-confirmed” case, the employer need not inquire further whether the case is recordable – it is not.