There has been some recent activity regarding the OSHA interest and involvement in the workplace coronavirus exposure. A new guidance document on COVID-19 from OSHA was released on January 29. As a guidance document, it is not an enforceable document. However, OSHA can use this document as a basis for a General Duty Clause citation for not providing a workplace that was free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. Under the general duty clause, employers must protect employees from COVID-19 hazards at the workplace by, for example, mandating facial coverings, ensuring social distancing, etc.
Previous OSHA activity related to the coronavirus has been almost exclusively in the health care industry and most citations were concentrated on respirators, personal protective equipment, record keeping and the General Duty Clause. However, on January 21, President Biden ordered OSHA to revise the original COVID-19 guidance document for employers AND for OSHA to consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary to issue them by March 15, 2021.
An Emergency Temporary Standard (ETS) has the status of formal regulations, take effect immediately and remain in effect until superseded by a permanent standard. This is permissible by OSHA regulations under certain limited conditions if it is determined that workers are in grave danger due to a new hazard. An ETS does not go through the painstakingly slow process of OSHA holding hearings and attaining congressional approval which is known to take years if not decades.
The new COVID-19 guidance document is currently in effect and can be found at this link: https://www.osha.gov/coronavirus/safework
In that document, OSHA recommends that employers implement a COVID-19 Prevention Program in the workplace and that this program include conducting a workplace hazard assessment and identifying a combination of measures that limit the spread of COVID-19 in the workplace. It also provides additional detail on key measures for limiting the spread of COVID-19 such as implementing physical distancing, installing barriers where physical distancing cannot be maintained, suppressing the spread by using face coverings, guidance on the use of personal protective equipment, improving ventilation, providing supplies for good hygiene, and routine cleaning and disinfection.
The guidance document also details face coverings, which are stricter than previous guidance documents and references the CDC recommendation that face coverings be worn over the nose and mouth and be made of at least two layers of a tightly woven breathable fabric and should not have exhalation valves or vents. This may eliminate the use of bandanas or shirts used as a mask and possibly the neck gaiter. Additionally, wearing a face covering will not eliminate the need for physical distancing or other controls.
2020 was packed with pandemic misinformation, disinformation, a non-existent national program, a lackluster OSHA involvement, and the politics of facial coverings which complicated an employer’s response to a safer workplace. I would expect OSHA to be much more involved and aggressive, so it would be to your benefit to become more familiar with the new COVID-19 guidance document in preparation for an Emergency Temporary Standard that will be effective immediately on publication.
Safety and Risk Solutions is ready to assist our clients in protecting your employees from the virus and protecting the employers from the expected OSHA involvement.