OSHA & PA Dept. of Health Issue Additional COVID-19 Guidance/Order
The United States Occupational Safety and Health Administration (OSHA) continues to issue guidances regarding how it will construe certain workplace requirements in the context of the COVID-19 pandemic. As an update to our previous Special Alert, below is a summary of the two most recent OSHA guidances which provide more clarity on when employers must determine if an employee’s COVID-19 illness is “work-related” and when OSHA might issue General Duty Clause violations. In addition, yesterday the Pennsylvania Department of Health (DOH) issued an Order regarding mandatory protective measures for businesses permitted to continue in-person operations. Both this Order and previously issued DOH guidance also specify measures to be taken when workers test positive for COVID-19 or are awaiting results, including how to define “close contacts” of these individuals and what steps should be taken regarding these close contacts.
April 10 OSHA Guidance
On April 10, 2020, OSHA issued guidance entitled Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), which clarifies that a worker diagnosed with COVID-19 does not necessarily constitute a recordable illness. Aside from employers in the healthcare, emergency response, and correctional institution sectors, OSHA will not enforce 29 C.F.R. § 1904 to require other employers to make work-relatedness determinations for COVID-19, except where: (1) there is objective evidence that a COVID-19 case may be work-related (including, for example, a number of cases developing among workers who work closely together without an alternative explanation); and (2) the evidence was reasonably available to the employer. Examples provided by OSHA of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business. However, the guidance does not indicate what evidence would be sufficient to conclude that COVID-19 was contracted at work rather than in the community, and so there will likely be few circumstances where an employer will have sufficient evidence to warrant recording in an OSHA 300 log.
NOTE: OSHA reversed this position on May 19, 2020. See our May 21 Alert on this reversal for the latest information.
April 13 OSHA Response Plan
On April 13, 2020, OSHA issued guidance entitled Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), which incorporates a number of previously issued guidances and directs Area Offices and OSHA inspectors on how to handle complaints, referrals, and onsite inspections related to the workplace hazard of SARS-CoV-2 which is the virus causing the current COVID-19 pandemic. OSHA is receiving an increasing number of COVID-19-related complaints from workers expressing concerns related to a lack of personal protective equipment (PPE), such as respirators and gloves, a lack of training on appropriate standards, and about possible COVID-19 illnesses in the workplace. Some of the key elements and our take-aways from this guidance are the following:
- OSHA is assigning a risk level (high and very high, medium, and lower) to workplaces when deciding whether to conduct a COVID-19-related inspection. Fatalities and imminent danger exposures will be prioritized for inspections. Complaints relating to medium or lower risk exposure settings will not normally warrant an on-site inspection, but may be addressed with a call and letter requiring a response by a specified date. An inadequate response could prompt an inspection.
- In performing an inspection or review of COVID-19 concerns, OSHA will be looking for documentation such as a written pandemic plan, procedures for hazard assessment and protocols for PPE, and evidence of efforts made by the employer to obtain and provide appropriate and adequate PPE.
- Prior OSHA guidance has specified that, in light of supply shortages, OSHA is using discretion in enforcing the Respiratory Protection Standard, 29 C.F.R. § 1910.134. To benefit from these guidances, an employer must be able to establish that it first considered or implemented a hierarchy of controls for worker protection (engineering controls, administrative controls, safe work practices, and then PPE), and made a good faith effort to provide appropriate respiratory protection by considering options in a specified order (including more protective respirators, respirators approved under other countries’ standards or beyond their recommended shelf-life, and extended use and reuse). To take advantage of this possible enforcement discretion, inspectors will want to confirm that workers are performing a user seal check and appropriate inspection each time a respirator is used.
- OSHA intends to issue General Duty Clause violations if deficiencies not addressed by OSHA standards are found in high to very high exposure settings and guidance is available (e.g., CDC). However, the four required elements for such violations still apply: (1) the employer failed to keep the workplace free of a hazard to which employees of that employer were exposed; (2) the hazard was recognized; (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible and useful method to correct the hazard. Unless all four of these elements are present, OSHA will issue a hazard alert letter (HAL) recommending the implementation of protective measures that address SARS-CoV-2 hazards. OSHA will consult the most current CDC guidance in assessing the adequacy of an employer’s protective measures.
- For purposes of OSHA injury and illness recordkeeping, cases of COVID-19 are not considered a common cold or seasonal flu. The work-relatedness exception for the common cold or flu at 29 C.F.R. § 1904.5(b)(2)(viii) does not apply to these cases but is addressed by the April 10 guidance.
- OSHA is encouraging its inspectors to perform elements of an inspection electronically or remotely, such as opening conferences and document reviews, to the extent possible.
- The guidance provides the following attachments: (1) a sample employer letter for COVID-19 activities; (2) a sample hazard alert letter; and (3) a sample alleged violation description for a citation under the General Duty Clause.
April 15 Pennsylvania DOH Order and Guidance
Yesterday, the Secretary of the Pennsylvania DOH issued an Order specifying protective measures to be taken by businesses (other than health care providers) authorized to maintain in-person operations, including defined social distancing, mitigation, and cleaning protocols. The specified measures include staggering shifts and break times, limiting the number of employees in common areas, limiting in-person meetings to ten, providing masks for employees and making wearing masks a mandatory requirement, and prohibiting non-essential visitors. For businesses that serve the public, there are additional specified actions, such as altering business hours to allow sufficient time to clean and restock, installing shields or other barriers, and requiring all customers to wear masks while on premises (unless the business provides medication, medical supplies or food, in which case the business must provide alternative methods of pick-up or delivery). Both this Order and guidance issued by the DOH last week specify what constitutes a “close contact” for purposes of determining exposure to COVID-19, and what steps should be taken by patients and workers waiting for COVID-19 test results, by those with positive test results and by close contacts of patients/employees diagnosed with COVID-19. The instructions regarding close contacts of persons with probable or confirmed cases of COVID-19 include implementing temperature screening. The Order and guidance are instructive for employers in designing a plan for how to react if employees show symptoms or test positive for COVID-19.
If we can assist you in navigating these requirements and guidances, please contact Jill Kaplan at email@example.com or 484-430-2315.