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OSHA Virus Rules for Employers Are About More Than Just Masks

April 6, 2020, 1:19 PM

The federal agency that polices workplace safety has stopped short of enacting an emergency rule to guard against on-the-job transmission of the novel coronavirus, but employers still must adhere to numerous existing regulations as they try to manage the risk and uncertainty created by the global pandemic.

Take, for example, illness and injury reporting requirements. The Occupational Safety and Health Administration requires hundreds of thousands of employers with 10 or more workers to maintain a log of every workplace injury or illness that requires medical treatment beyond first aid or that keeps a worker away from work for at least one day.

Those requirements do not include cases of the common cold or influenza. But in early March, the agency released guidance requiring businesses to record confirmed cases of Covid-19 that are work-related.

That means employers must wrestle with thorny questions such as whether a worker who tests positive for Covid-19 contracted the disease while at work. The agency later clarified employers’ obligations to log workplace illnesses.

Here’s a rundown of the top OSHA standards that apply to the pandemic.

Personal Protective Equipment

Covid-19 has put tremendous emphasis on PPE, or personal protective equipment—clothing, helmets, face masks, goggles, and other gear meant to prevent injury.

OSHA’s PPE standard requires use of gloves, eye and face protection, or respiratory protection depending on a worker’s specific task. When respirators are necessary, employers must implement a comprehensive respiratory protection program in accordance with the agency’s Respiratory Protection standard.

The pandemic has led to a shortage of N95 respirators. OSHA responded to a flood of questions from industry groups and companies by issuing guidance April 3 that said employers won’t be cited for violating respiratory protection rules if their workers reuse N95 respirators so long as they adhere to CDC guidance.

OSHA last month issued a memorandum relating to enforcement of respirator annual fit-testing requirements for the health-care sector. The agency recommended that health-care employers change from a quantitative fit-testing method to a qualitative one “to preserve integrity of N95 respirators.”

Qualitative fit testing is a pass/fail method that measures a person’s ability while wearing a respirator to taste, smell, or otherwise respond to an irritant, which detects leakage into the device’s facepiece.

Quantitative fit testing is more precise. It uses a machine to measure the actual amount of leakage through a respirator’s facepiece instead of relying on a person’s senses.

General Duty Clause

The “general duty clause” is one of the most important OSHA regulations. The clause, specifically Section 5(a)(1) of the Occupational Safety and Health Act of 1970, requires employers to provide workers 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.”

Attorneys who handle workplace safety matters told Bloomberg Law that the clause likely will be used by OSHA inspectors to cite employers for failure to protect workers from contracting Covid-19 on the job. Lawyers cited past use of the clause in health-care settings, which has led to several high-profile cases challenging the standard.

And some lawyers say that while OSHA’s guidance on Covid-19 was meant to apply to all workers, it could be interpreted as referring strictly to health-care workers, who are at greater risk of infection.

Hazard Communication

OSHA’s Hazard Communication Standard, or HazCom, is a set of procedures that employers and importers must use to communicate hazards associated with chemicals during handling, shipping, and any form of exposure. It’s the second most frequently cited standard during safety inspections, according to the agency.

One of the requirements under HazCom is that employers with hazardous chemicals in their workplaces must have labels and safety data sheets for their exposed workers, and train them to handle the chemicals appropriately. Information about the identities and hazards of chemicals in the workplace must be available and understandable to workers.

Workplace safety attorneys have warned manufacturers who have shifted gears to produce medical supplies to pay careful attention to HazCom requirements, especially when workers are handling tasks that differ from their regular duties.

Bloodborne Pathogens

OSHA’s Bloodborne Pathogens Standard applies to occupational exposure to human blood and other potentially infectious materials. That typically doesn’t include the respiratory secretions that are one of the main ways Covid-19 is spread. The standard does apply to other potentially infectious materials, such as bodily fluids.

OSHA doesn’t have similar standard for airborne viruses, such as the novel coronavirus, but lawmakers have called for an infectious disease rule.

State Standards

Twenty-eight states have OSHA-approved state plans. Six of those apply only to government workers in the state, while the remainder apply to both public- and private-sector workers.

The plans allow the states to operate statewide occupational safety and health programs featuring state-specific rules and regulations regarding Covid-19 safety. The state standards and enforcement programs must be at least as effective as OSHA’s, and some may have more stringent requirements.

What’s Missing?

House Democrats and worker advocates have repeatedly urged the DOL and OSHA to enact an emergency temporary standard to prevent coronavirus exposure.

On March 23, House leaders introduced the Take Responsibility for Workers and Families Act (H.R. 6379), which includes a provision that would force OSHA to issue an emergency temporary rule requiring health-care providers and emergency responders to institute infection-prevention programs.

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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