OSHA’s COVID-19 Emergency Temporary Standard (ETS) mandating employee vaccines for certain employers was struck down by the U.S. Supreme Court in January 2022. Without the ETS, there is no OSHA standard that creates specific or new legal obligations related to COVID-19. But that doesn't mean employers don’t still have to adhere to certain OSHA standards that regulate workers’ exposure to coronavirus.
Here is an employer’s guide to the OSHA standards that apply to worker exposure to COVID-19:
The Personal Protective Equipment (PPE) Standard and COVID-19
Under 29 CFR 1910 Subpart I and 29 CFR 1926 Subpart E, employers must provide and maintain personal protective equipment for the eyes, face, head, and extremities whenever it is necessary because of hazards or environmental processes. Employees should be protected from absorbing, inhaling, or making physical contact with hazardous materials that can cause injury or illness.
These standards apply to COVID-19 and require employers to conduct a PPE hazard assessment and use PPE when necessary. Different PPE may be appropriate in different industries. Generally, OSHA advises employers to provide face coverings to workers who request them at no cost, unless their work task requires a respirator. When respirators are necessary to protect workers, “employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard (29 CFR 1910.134).”
Under the respiratory protection standard, employers must provide respirators to prevent occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors. Respiratory secretions that may contain SARS-CoV-2 may qualify as contaminated air.
For healthcare workers caring for patients with COVID-19 or suspected infection, the preferred PPE for COVID-19 include:
- N95 or higher respirator (a facemask is an acceptable alternative)
- Face shield or goggles
- One pair of clean, non-sterile gloves
- Isolation gown
Applying the General Duty Clause to COVID-19
OSHA expects employers to take reasonable measures to protect employees from workplace exposure to COVID-19. The general duty clause requires employers to provide each worker with “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.”
What does this mean with regards to COVID-19? OSHA summarized its guidance to employers in a 2020 booklet, calling for employers to “identify risk levels in the workplace and to determine appropriate control measures…” The OSHA guidance is organized by risk level – lower, medium, and high or very high-risk exposure – but recommends these steps for all employers:
- Develop an infectious disease preparedness and response plan that considers sources of exposure, individual risk factors (such as age, chronic medical conditions, pregnancy, etc.), and the controls necessary to address those risks.
- Implement basic infection prevention measures, such as promoting frequent hand washing, routine cleaning and disinfecting of surfaces, and encouraging workers to stay home if they are sick.
- Develop policies and procedures to promptly identify and isolate sick people, such as encouraging employees to self-monitor for symptoms of COVID-19, reporting procedures for employees to use when they are sick or have symptoms, and isolate people suspected of having COVID-19.
- Develop and communicate workplace flexibilities and protections to actively encourage sick employees to stay home and to allow employees to stay home to care for sick family members (acknowledging that there will be more than the usual number of sick employees or employees caring for sick family members).
- Implement workplace controls, such as physical barriers, improved ventilation, minimizing contact between employees, education and training on risk factors and protective behaviors, resources for personal hygiene, and PPE.
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. However, employers should be aware that there may be implications for failures to adequately manage coronavirus risks, even if no specific standard exists, especially since OSHA updated its enforcement strategy in 2021. The agency is prioritizing inspections for reported incidents involving deaths or multiple hospitalizations due to occupational exposures to COVID-19, as well as to target high-hazard industries (both health care and non-healthcare).
Is COVID-19 a Recordable Illness on My OSHA 300 Log?
COVID-19 can be a recordable illness if a worker is infected while performing work-related duties. However, employers are only required to record cases of COVID-19 if all the following are true:
- 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);
- The case is work-related (as defined by 29 CFR 1904.5); and
- The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first aid, days away from work).
How does OSHA define “work-related”? As defined in OSHA’s recordkeeping regulation, an employer must consider an illness to be work-related if the COVID-19 exposure likely occurred within the employee’s work environment.
Am I Required to Report Work-Related Cases of COVID to OSHA?
Employers are required to report the fatality or in-patient hospitalization of an employee with a confirmed, work-related case of COVID-19, in the following situations:
- Employers must report an inpatient hospitalization of an employee with a confirmed, work-related case of COVID-19 if the hospitalization occurred within 24 hours of an exposure at work. Per OSHA, “the employer must report such hospitalization within 24 hours of knowing both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19.”
- Employers must report all fatalities for work-related, confirmed cases that occur within 30 days of an exposure to COVID-19 at work (employers have 8 hours to report after learning of both the death and the work-related COVID-19 exposure).
OSHA emphasizes that healthcare employers should typically report fatalities and hospitalizations resulting from confirmed cases of COVID-19 among employees working in areas where suspected or confirmed COVID-19 patients are treated, unless there is clear evidence that the illness was contracted outside of the workplace.
Applying OSHA’s Hazard Communication Standards to Chemicals Used for COVID-19 Cleaning and Disinfecting
Common sanitizers and sterilizers are crucial in the fight against COVID-19 but may contain hazardous chemicals. When workers are exposed to hazardous chemicals, employers must comply with OSHA’s Hazard Communication standard (29 CFR 1910.1200) and protect their workers from exposure to these chemicals (including chemicals used for cleaning and disinfection).
OSHA offers this guidance to employers on practices to help keep workers safe when working with cleaning chemicals that are hazardous:
- Reviewing the proper protective equipment needed, such as gloves and goggles, and providing the proper protective equipment to the workers using the cleaning product;
- Warning workers not to mix cleaning products that contain bleach and ammonia;
- Making sure that workers know which cleaning chemicals must be diluted and how to correctly dilute the cleaners they are using;
- Thoroughly reviewing and training workers on the use, storage and emergency spill procedures for cleaning chemicals;
- Ensuring that all containers of cleaning products and chemicals are labeled to identify their contents and hazards;
- Operating ventilation systems as needed during cleaning tasks to allow sufficient air flow and prevent buildup of hazardous vapors; and
- Providing workers with a place to wash up after using cleaning chemicals.
What About Healthcare Workers?
OSHA withdrew its healthcare ETS in December 2021 but still strongly encourages compliance and has promised to “vigorously enforce” the discontinued standard using the general duty clause.
OSHA’s withdrawn healthcare ETS required healthcare employers to:
- Conduct a hazard assessment and have a written COVID-19 plan to mitigate spread of the virus;
- Provide employees with N95 respirators or other personal protective equipment;
- Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, and other visitors and non-employees; implement patient management strategies;
- Ensure 6 feet of distance between workers. In situations where this is not possible, employers should erect barriers between employees where feasible;
- Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines;
- Provide workers with paid time off to get vaccinated and to recover from any side effects. Covered employees who have coronavirus or who may be contagious must work remotely or otherwise be separated from other workers if possible, or be given paid time off.
Other industries also have specific standards relevant to COVID-19 exposure, including the maritime, constriction, food processing, retail, and agriculture industries. OSHA offers industry-specific guidance on its website.
Hendershot Cowart P.C. encourages all employers to take active precautions in managing workplace risks amid the ongoing coronavirus pandemic. Our attorneys are available to help employers with questions about OSHA compliance, workplace hazard analyses, safety plans, and related matters. Call (713) 909-7323 or contact us online.