OSHA’s Requirements for Preventing and Minimizing the Occupational Risks of COVID-19

There are two overarching principles that are fundamental to complying with OSHA’s requirements. First, the OSH Act and its standards are designed to prevent a workplace injury or illness from occurring. As such, OSHA’s standards focus on preventing a significant risk of harm to employees, and each standard addresses a different type of hazard. Frequently, and as is the case with COVID-19, an employer must consider multiple standards concurrently to eliminate or reduce the risk of employee exposure to the coronavirus. Second, every workplace is different, posing different workplace conditions, risks, and hazards. Working outdoors in the sunlight, which is a natural disinfectant, with mild wind poses different risks for those employees concerned about exposure to the coronavirus than employees working indoors in a typical office setting. There is no simple “one size fits all” solution.

With respect to COVID-19, the first task for employers is identifying the potential sources of workplace exposure. Do employees interact with the general public, co-workers, customers, workers who have traveled, or infected patients recovering in a hospital? The second task for employers is to evaluate what measures will be effective in that specific workplace to minimize potential exposure. There are no OSHA standards or rules that specifically address the steps an employer should take to eliminate and/or materially reduce the risk of employee exposure to the coronavirus. However, on March 9, 2020, OSHA issued guidance addressing the risks of the coronavirus in the workplace and outlined three major recommendations as to how they may be minimized: practice good hygiene, maintain social distancing, and eliminate unnecessary interactions with co-workers and the public.

Because there are no specific OSHA standards applicable to the hazards posed by COVID-19, employers should first look to the general duty clause (“GDC”) contained in the OSH Act. In practical terms, the GDC requires an employer to maintain the workplace in a safe condition and take steps to ensure that work is performed safely. OSHA is likely to consider the coronavirus to be a recognized hazard, and thus the GDC requires employers to take reasonable steps to either eliminate the hazard posed by the virus or materially reduce the risk of exposure to that hazard.

Employers should also evaluate their obligations under the standards governing sanitation, personal protective equipment, and respirators. First, OSHA’s sanitation standard requires employers to keep the workplace “clean,” to maintain washing facilities in a “sanitary” condition, to provide running water and soap, and to maintain food preparation and consumption areas in accordance with “sound hygienic principles.”

Second, OSHA’s personal protective equipment standard, which usually applies to various forms of barriers that protect against hazards, such as hard hats or insulated gloves, is actually very broad in its terms. The standard requires employers to protect their employees from all hazards of the work “environment capable of causing impairment in the function of any body part through absorption, inhalation and physical contact.” The coronavirus can impair pulmonary function and can be contracted through inhalation and physical contact.

Third, OSHA’s respirator standard requires employers to evaluate the respiratory hazards in the workplace, select the appropriate type of respirator necessary to protect against those hazards, provide a medical examination to each employee prior to their using the respirator, provide fit testing and extensive employee training, and develop protocols for the cleaning and storage of respirators. Using a respirator for an eight-hour shift can cause respiratory strain which has to be balanced against the risk of workplace exposure to COVID-19. Both OSHA and the CDC have issued guidance on the use of respirators recommending that they are appropriate for healthcare workers in high-risk jobs but usually not for general office work or manufacturing operations.

For decades, safety professionals have used the hierarchy of controls methodology to determine the most effective way to reduce and/or eliminate hazards from the workplace. The hierarchy considers the elimination of the hazard to be the most effective control measure, which means that employers should determine first whether entirely removing the source of the hazard from the workplace is possible. If it is not, employers should then consider other control methods in the order of their effectiveness, such as engineering controls, administrative controls, safe work practices, and lastly the provision of personal protective equipment, which is considered the least effective control method. Considering this hierarchy, the GDC, and the standards potentially applicable to the hazards posed by COVID-19, there are a series of steps that employers should consider to decide what they should do to protect their employees from workplace exposure to the coronavirus. We address each step below.

Engineering Controls

An engineering control eliminates or removes a hazard from the workplace without any reliance on human behavior. Engineering controls for COVID-19 include:

• Increasing ventilation rates in the workplace. Following coughing and sneezing, the coronavirus can remain airborne for approximately three hours, and during that time, the ventilation system in your office building can help evacuate it.
• Installing high efficiency particulate air filters, which are very effective in removing airborne contaminants.

Safe Work Practices – Good Hygiene

Safe work practices reduce the duration, frequency, and intensity of an exposure to COVID-19 in the workplace, and include:

• Washing your hands with soap and water for at least twenty seconds. Hand washing should be done after you sneeze or cough, after you use the bathroom, after you travel outside, and prior to preparing food or eating it.
• Maintaining automatic dispensers for hand sanitizers that are at least 60% alcohol.
• Sanitizing equipment that is used by multiple employees, such as telephones, radios, keyboards, cash registers, workstations, and forklifts either at the beginning of each shift or at the transfer of the equipment to another employee.
• Expanding janitorial services to include sanitizing common surfaces that many will touch, such as doors, doorknobs, faucets, water fountains, and elevator buttons.

To effectively implement these safe work practices, employers need to maintain adequate supplies of soap, sanitizer, and sanitary wipes.

Administrative Controls

Administrative controls are policies and procedures designed to minimize employee exposure to COVID-19, and include:

• Requiring a separation distance of at least six feet between employees. For decades, the general rule regarding separation distances necessary to prevent the spread of airborne pathogens has been a distance of three feet. However, the CDC recommends a distance of six feet to prevent the spread of COVID-19. As more data becomes known about the virus, this guidance may change, and employers should designate a person to monitor this and in turn share the changes with their workforce.
• Training employees on the fundamentals of good hygiene so that they wash their hands properly, and know to sneeze or cough into a tissue or their elbow and then wash their hands.
• Training employees on the signs and symptoms of the coronavirus infection and the measures that the employer has undertaken to reduce their exposure to the coronavirus.
• Directing employees who are sick to stay home until they are free of fever (current guidance, which may change, defines a fever as 100.4° F or greater using an oral thermometer), signs of a fever, and any other symptoms for at least twenty-four hours, without the use of fever-reducing or other symptom-altering medicines.
• Directing employees who are sick and still come to work to return home, as well as providing the sick employee with a surgical-type mask to prevent transmission of the virus from the sick employee into the workplace as he/she exits the workplace.
• Minimizing face-to-face contact among co-workers, clients, and customers and using alternative means of communication, such as webinars and conference calls. Employers should consider postponing company-sponsored events, such as happy hours or team lunches. It may also be possible for employers to increase the distances between employees at work, stagger shifts, and direct employees to work remotely.
• Eliminating unnecessary travel and monitoring the CDC and State Department advisories concerning locales with high risks of coronavirus transmission. Employers should develop a policy that considers whether there are alternatives to travel that meet the business objective and who the appropriate person is to engage in essential travel that cannot be avoided. An employer’s duty to ensure safe work and a safe workplace extends to all employees. In a typical work setting, the risk of injury or illness is the same for each worker. However, with COVID-19, certain employees may face a greater risk of illness given their age or medical condition. The current data, which is still evolving, indicates that 99.7% of healthy employees under the age of 50 make a full recovery from the coronavirus. Employees older than 60 who also have complicating factors such as cardiovascular disease or diabetes have significant risks of hospitalization or death. Where travel is unavoidable, employers should train employees on good hygiene practices for travelers, such as using sanitary wipes, cleaning arm rests or tables on planes and trains, cleaning steering wheels and gear shifts on rental cars, and cleaning doors, faucets, TV remotes, and phones in hotel rooms.
• Contacting vendors whose employees make deliveries to your workplace, and requiring contractors who send employees into your workplace to review the adequacy of their measures to prevent the spread of COVID-19.
• Requiring employees to self-quarantine for fourteen days if they have exhibited symptoms of the coronavirus, traveled to countries or communities with known coronavirus cases, have members in their household who have traveled to such locales, or been exposed to others who have tested positive.

Personal Protective Equipment

Personal protective equipment includes gloves, goggles, face shields, face masks, gowns, and respirators. An employer must evaluate the risks of COVID-19 exposure given the unique characteristics of their workplace and the type of work employees perform, and determine what personal protective equipment is necessary. OSHA’s guidance recommends that employers evaluate whether their employees are at “very high,” “high,” or “medium” levels of risk. “Very high risk” work involves, for example, healthcare workers who perform aerosol-generating procedures, such as a bronchoscopies. “High risk” work includes healthcare professionals who provide care and services to patients having or suspected of having the coronavirus. “Medium risk” work involves frequent and/or close contact with people who may be infected with the coronavirus but who are not known to be infected.

OSHA has defined “lower exposure risk” jobs as those that do not require contact with people known to be or suspected of being infected with the coronavirus and that do not require frequent close contact with the general public. OSHA does not recommend any personal protective equipment to protect employees in this lower exposure risk category from the coronavirus.

Conclusion

This is a challenging time for employers. These challenges are complicated by the rapid spread of COVID-19, which appears to be more contagious than the flu, the lack of key data about the virus itself, and the continuing shortages of cleaning products. Nonetheless, employers have the duty to ensure safe work and a safe workplace to all employees. This can be done through the development of a safety and health program designed to eliminate and/or materially reduce the risks of exposure to the coronavirus. The engineering and administrative controls, safe work practices, and personal protective equipment discussed above provide a framework employers can use to develop an effective program to minimize occupational exposure to the coronavirus. In addition, there are a multitude of resources to assist employers in navigating the challenges of the virus, particularly those issued by OSHA and the CDC. Safety professionals have been applying the hierarchy of controls methodology for decades and have extensive backgrounds in evaluating workplace hazards and developing programs to address them. A workplace reasonably free from the risks of COVID-19 is very much achievable.