OSHA and COVID-19 An Update

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OSHA (The Occupational Safety and Health Administration) along with the Centers for Disease Control (CDC) developed workplace guidance documents at the start of the pandemic in the U.S. Over time, the agencies have developed industry-specific guidance and have also focused on PPE issues especially as it relates to the use of respirators. From the beginning, OSHA has been clear in stating that the information is guidance and does not create a specifically-enforceable standard.
OSHA has been under pressure from labor organizations and worker advocate groups to develop an emergency standard. There was even a court case where OSHA prevailed in its stance to not create an emergency standard at this point. A few state OSHA programs, including Virginia and Michigan have enacted a workplace safety standard to address issues relating to COVID-19. California is at work on standards. It is not expected that federal OSHA will enact any standards relating to infectious diseases like COVID-19 in the near future.

There have been reports of OSHA citations to companies for failing to properly protect employees from hazards of COVID-19. Here are a few facts to keep in mind. According to the OSHA list of COVID-19 inspections with citations there were about Eighty (80) through October 8. All but two of these cases appear to be healthcare facility-related. JBS Foods and Smithfield Packaged Food Corp. are the two that are not in the health care category. All but about 15 of the inspections took place in Region II which includes: NY, NJ, CT, MA, VT, NH, ME and Puerto Rico.
According to a recent OSHA news release The categories of citations issued by OSHA include failure to :
• Implement a written respiratory protection program;
• Provide a medical evaluation, respirator fit test, training on the proper use of a respirator and personal protective equipment;
• Report an injury, illness or fatality;
• Record an injury or illness on OSHA recordkeeping forms; and
• Comply with the General Duty Clause of the Occupational Safety and Health Act of 1970

The specific violations alleged by OSHA at the two meat processing plants included:
The General Duty Clause – OSH ACT of 1970 Section (5)(a)(1) and 1904.35(b)(2)(iii) which states, When an employee, former employee, personal representative, or authorized employee representative asks for copies of your current or stored OSHA 300 Log(s) for an establishment the employee or former employee has worked in, you must give the requester a copy of the relevant OSHA 300 Log(s) by the end of the next business day.
Remember the General Duty Clause reads as follows: “Each employer shall furnish to each of his employees 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 to his employees.”

To prove a General Duty case OSHA must meet all of the following tests
• The employer failed to keep the workplace free of a hazard to which its employees were exposed.
• The hazard was recognized.
• The hazard was causing or was likely to cause death or serious physical harm.
• A feasible and useful method to correct the hazard was available.
One of the best things you can do is to take the proper steps for the safety and well-being of your employees by following your state’s requirements and the guidance from OSHA and the CDC. Much of the state orders have incorporated the latest CDC guidance. The OSHA guidance provides practical steps to take.

The start is to have a written plan for how you are addressing the hazards of COVID-19, the steps you are taking to prevent an infected employee from reporting to work and steps you will take if an employee experiences symptoms at work. Supervisors and employees need to be trained in your plan, so they know their responsibilities. With flu season upon us, it may be hard to distinguish between the flu and COVID-19, but employers need to make sure employees do not come to work with flu or COVID-19 symptoms and must not return to work until they have been evaluated and follow the procedures for return to work.

It is understandable that mask wearing and other precautions may have relaxed during the summer months due to high heat and simply a sense that things were getting better. Now is the time to re-engage with the practices your firm can take to address the COVID-19 pandemic.

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