For “essential businesses” that remain open during the “shelter-in-place” orders now in place in most states, employee health and safety is a huge concern. Moreover, it is becoming apparent that even after the shelter-in-place orders are lifted, protection against a second (or third) outbreak may mean increased restrictions on businesses. The Department of Labor (“DOL”) has stated that it, through the Occupational Safety and Health Administration (“OSHA”), is not preparing any special standards for COVID-19, but reminds businesses that existing OSHA requirements still apply. To that end, OSHA has issued a helpful pamphlet Guidance on Preparing Workplaces for COVID-19.
This government guide provides basic measures that each employer can undertake to reduce the possible risk of exposure to its employees – depending on the presumed level of risk the employee occupies on the spectrum, i.e. healthcare worker (high) to the general public (low).
OSHA recommends that employers implement certain specific measures including but not limited to:
- Promoting frequent and thorough handwashing, including by providing workers, customers, and worksite visitors with a place to wash their hands with soap/ water or an alcohol-based antiseptic,
- Encouraging workers to comply with appropriate “stay home” orders issued by public health officials,
- Establishing and implementing policies and practices that encourage social distancing including telecommuting and flexible work hours,
- Maintaining or increasing housekeeping practices to include increased frequency of cleaning and disinfecting of surfaces, equipment, and areas of the work.
In addition, OSHA recommends that employers consider a number of workplace controls, including but not limited to:
- Engineering controls (sneeze guards);
- Administrative controls (telecommuting or reduction of on-site employees);
- Safe work practices (increased hygiene resources); and
- Personal protective equipment (“PPE”) (masks, gloves, etc.).
The Centers for Disease Control (“CDC”) and OSHA have also issued more restrictive guidance for certain industries deemed to be at higher risk of exposure.
Critically, the Equal Employment Opportunity Commission (“EEOC”) opined that employers are not prohibited from mandating infection control practices provided such requirements are implemented uniformly and do not discriminate based on protected characteristics.
With respect to the existing OSHA requirements that may apply, the PPE Standards (in general industry, 29 CFR 1910 Subpart I) are probably the most relevant to businesses that are required to remain open. The PPE standards require using gloves, eye and face protection, and respiratory protection when job hazards warrant it. If it is determined that 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). OSHA issued temporary guidance on fit requirements targeted to COVID-19 in its Temporary Enforcement Guidance – Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak (March 14, 2020).
Another standard that may be implicated by the COVID-19 outbreak is OSHA’s Bloodborne Pathogens standard (29 CFR 1910.1030). This standard applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may contain COVID-19 (unless visible blood is present). However, as the DOL points out, the provisions of the standard “offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not usually covered by the standard.” The upshot being that employers should consider using the bloodborne pathogens standard in developing its response to continuing operations during the COVID-19 outbreak.
Even though there are no specific rules regarding COVID-19, OSHA reminds employers of the General Duty Clause which states that employers must 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.” Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1)
Employers must also protect their workers from exposure to hazardous chemicals used for cleaning and disinfection. Employers should be aware that common sanitizers and sterilizers could contain hazardous chemicals. Where workers are exposed to hazardous chemicals, employers must comply with OSHA’s Hazard Communication standard (in general industry, 29 CFR 1910.1200), PPE standards (in general industry, 29 CFR 1910 Subpart I) and other applicable OSHA chemical standards.
OSHA reminds employers that “COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties.” In that case, OSHA’s record-keeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log (29 CFR Part 1904).
Cal/OSHA has gone a little bit further than OSHA by issuing interim guidance for general industry standards applicable to COVID-19, Cal/OSHA Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease (COVID-19) (March 2020). In those Interim Guidelines, Cal/OSHA outlines pre-existing standards that are generally applicable to the COVID-19 outbreak.
First, Cal/OSHA reminds those in the healthcare industry about the applicability of California’s Aerosol Transmissible Diseases (ATD) standard. It also recommends that employers use CDC guidance for protecting workers even if the ATD standard is not applicable to their operations.
Cal/OSHA also recommends a review of the General Industry standards, which includes the requirement that companies must have an Injury and Illness Prevention Plan (“IIPP”) in place to protect workers from workplace hazards. According to Cal/OSHA, for purposes of the IIPP, employers are required to determine if COVID-19 infection is a hazard in their workplace.
Finally, Cal/OSHA points out that there are Industry-Specific Health and Safety Guidelines that may apply to employers who are essential businesses. They include:
This is by no means an exhaustive guide to potential environmental health and safety concerns raised by the COVID-19 outbreak, but it should operate as a good starting point to develop a plan for employers to use in protecting their employees. By preventing an outbreak in a business, the business will be able to be kept open and operating.
Steve is a Partner at Leech Tishman and is based in the firm’s Pasadena office. He is a member of the Environmental, Corporate and Litigation Practice Groups. Steve can be reached at 626.796.4000 or via email at firstname.lastname@example.org.
Robert is Counsel with Leech Tishman and is based in Leech Tishman’s LAX / El Segundo office. He is a member of the firm’s Employment & Labor, Corporate, and Litigation Practice Groups. Robert can be reached at 424.738.4400 or via email at email@example.com.
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