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HR, Employers & Coronavirus: OSHA Compliance Amid COVID-19

HR, Employers & Coronavirus: OSHA Compliance Amid COVID-19
Hendershot Cowart , P.C.

The world is reeling over the coronavirus, and employers in every industry have reason to prioritize the health and safety of their employees during what’s been declared a global pandemic by the World Health Organization (WHO), and a National Emergency by President Donald Trump.

Although updates related to COVID-19, local closures, and public health advisories are continually developing, there are some important steps employers and Human Resource departments should be taking to ensure the safety of their workforce, minimize and manage risks, and reduce the impact on business and productivity.

Here are a few quick takes on the coronavirus and OSHA compliance:

OSHA Alert

OSHA issued a new alertPrevent Worker Exposure to Coronavirus (COVID-19) – to inform employers and workers on general practices to prevent the spread of the virus. This includes frequent hand washing and limiting contact with people who are sick, as well as practices for employers of workers with potential occupational exposure. Per OSHA, employers should:

  • Assess the hazards to which workers may be exposed.
  • Evaluate the risk of exposure.
  • Select, implement, and ensure workers use controls to prevent exposure, including physical barriers to control the spread of the virus; social distancing; and appropriate personal protective equipment, hygiene, and cleaning supplies.

Employers can find the latest updates on managing coronavirus risks in the workplace on the OSHA COVID-19 webpage. The CDC also provides Coronavirus information and updates for the general public.

OSHA Interim Guidance (March 9, 2020)

In addition to a new alert, OSHA issued interim guidance on March 9thGuidance on Preparing Workplaces for COVID-19. The guidance, which draws from evolving information available from the HHS and CDC, is intended to help employers plan for an outbreak, namely by encouraging employers to identify risks specific to their workplace, and determine appropriate management and control measures.

Some of the steps all employers can take to reduce workers’ exposure risks include:

  1. Creating an infectious disease preparedness and response plan to guide protective actions against Covid-19
  2. Staying up-to-date with guidance from local, state, or federal health agencies, and incorporating them into worksite-specific plans.
  3. Preparing and implementing basic infection prevention measures and guidance for employees.
  4. Creating policies and procedures for identifying and isolating potential sick employees so as to limit exposure to workers, customers, and others.
  5. Creating and issuing communication about workplace flexibilities and protections (i.e. encouraging at-home remote work, adopting flexible sick leave policies consistent with public health guidance, etc.)

Implementing engineering and administrative controls, safe work practices, and PPE.

In the interim guidance, OSHA also divides employers into four risk categories, and provides more specific recommendations for risk management and workplace controls. These categories include:

  • Very High Exposure Risk: Healthcare workers laboratory personnel and morgue workers who treat patients, handle samples, or perform autopsies with known or suspected COVID-19.
  • High Exposure Risk: Healthcare deliver and support staff, medical transport, mortuary workers involved in caring for known or suspected COVID-19 patients.
  • Medium Exposure Risk: All jobs which require frequent and / or close contact with known or suspected COVID-19 patients, including workers who have frequent contact with international travelers and the general public in areas with ongoing community transmission.
  • Lower Exposure Risk: Jobs that don’t require contact with known or suspected COVID-19 patients, or frequent close contact with the public or other co-workers.

Read OSHA’s COVID-19 Interim Guidance here.

Employers Must Manage Risks Even Without Explicit COVID-19 Standards

OSHA states its coronavirus guidance is not a standard or regulation, and creates no legal obligations. Instead, it provides recommendations for dealing with COVID-19, and reiterates existing mandatory safety and health standards.

Even though no specific COVID-19 standard exists, employers should be aware that there may be implications for failures to adequately manage coronavirus risks, even if no specific standard exists. That’s because recommendations are based on citable standards – including OSHA’s general duty clause, which requires employers to provide workplaces free from recognized hazards that can or are likely to cause serious harm or death (29 U.S.C. § 654(a)(1)). Additionally, OSHA has:

  • Confirmed its Hazard Communication Standard (29 C.F.R. 1910.1200) requiring employers to classify and communicate risks related to chemical use in the workplace also applies to situations where employees may be exposed to COVID-19.
  • Reiterated that qualifying employers must comply with recordkeeping standards on their OSHA 300 log cases of COVID-19 among workers if there is a confirmed case, the case is work-related (i.e. exposure in the work environment), and the case involves one or more of the general recording criteria provided in 29 CFR Part 1904.
  • Encouraged continued compliance with reporting incidents in the workplace which result in fatalities (within 8 hours) or inpatient hospitalization (within 24 hours).
  • Stated it will not inspect or expect employers to inspect home offices if employees are working remotely, and will not hold employers liable for home offices. However, employers must still record work-related injuries and illnesses if they are required to do so.

OSHA Temporary Enforcement Guidance on Health Care Respirator Standard (March 14, 2020)

On March 14, 2020, OSHA issued its second guidance document on COVID-19: Temporary Enforcement Guidance- Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak.

The guidance focuses on health care and compliance with the Respiratory Protection standard (29 CFR § 1910.134) with regard to recent supply shortages of N95 filtering facepiece respirators, the federal government’s move to approve the use of general-use respirators in health care settings, and the governments’ request for businesses to donate new, unused respirators for health care providers on the front lines of treating and testing patients with COVID-19.

Per the Temporary Guidance:

  • Appropriate respiratory protection is required for all health care personnel providing direct care of patients with known or suspected COVID-19.
  • OSHA recommends health care providers follow existing infection control guidelines, including engineering controls (i.e. airborne infection isolation rooms), administrative controls ( designated providers, cohorting patients), work practices (surface disinfecting, handwashing), and appropriate use of PPE.
  • OSHA advises taking measures to conserve respirator supplies while protecting providers, including the use of alternative respirators of equal or higher protection, such as N99 or N100 respirators, reusable elastomeric respirators with appropriate filters, or powered air purifying respirators (PAPR).
  • Health care providers may change the method of fit testing from a destructive method (i.e. quantitative) to a non-destructive method (i.e. qualitative). Both methods are effective for determining a proper fit for respirators.

OSHA’s guidance – which is supported by additional hospital guidance and respirator conservation strategies from the CDC – also notes that OSHA Compliance Safety and Health Officers will exercise enforcement direction concerning the annual fit testing requirement (29 CFR § 1910.134(f)(2)) if employers:

  1. Make good faith efforts to comply with the Respiratory Protection standard;
  2. Use only NIOSH-certified respirators;
  3. Implement OSHA and CDC strategies for optimizing N95 respirators and prioritizing their use;
  4. Perform initial fit tests for each provider using the same model, style, and size respirator the worker will be required to wear for protection against COVID-19;
  5. Inform employees of the temporary suspension of annual fit testing of N95 respirators to preserve supplies;
  6. Explain to employees the importance of performing a user seal check (fit check) each time they use a respirator.
  7. Conduct a fit test if they observe visual changes in a worker’s physical condition that could affect respirator fit (i.e. facial scarring, dental changes, etc.), and inform workers that they may not have an appropriate facial seal if their face shape has changed since the last fit test; and
  8. Remind employees that they should inform supervisors or respirator program administrators if they experience problems with the fit or integrity of their N95 respirators.

Though there are rapid developments and much to unfold, Hendershot Cowart , P.C. encourages all employers to take active precautions in managing workplace risks amid the ongoing coronavirus outbreak. Our attorneys are available to help employers with questions about OSHA compliance, workplace hazard analyses, safety plans, and related matters. Call or contact us online.

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