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Employers have had numerous questions about the Occupational Safety and Health Act (“OSHA”) and what precautions need to be made by employers who are still operating during the current COVID-19 pandemic. OSHA covers most private sector employers in addition to some public sector employers. Recently, OSHA released its first written guidance related to COVID-19 and the link can be found at the www.OSHA.gov website/Coronavirus Resources/”Guidance to Preparing Workplaces for COVID-19“, or thru the link below, or copy and paste into your (Firefox or Chrome recommended) browser:
https://www.osha.gov/Publications/OSHA3990.pdf
While there is no specific OSHA standard covering COVID-19, OSHA’s General Duty Clause requires employers to provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In light of the declaration of a pandemic and the government orders related to COVID-19, COVID-19 likely qualifies as a “recognized hazard” and employers should act accordingly. OSHA allows employees to refuse to perform work for his or her employer if the employee can establish that he or she is in “imminent danger.” Imminent danger means “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” That said, OSHA does not give grounds to allow an employee to refuse to work because of general anxiety related to COVID-19.
The linked-to OSHA guidance gives recommendations to prevent occupational exposure to COVID-19 including the potential use of protective equipment and the development of a respiratory protection program, a discussion of the blood-borne pathogen standards (which while they do not typically apply to respiratory issues, OSHA acknowledges that they may provide a framework for COVID-19 issues) and, guidance as to an employer’s duty to alert employees when using potentially hazardous chemicals for disinfection purposes.
OSHA was also clear that employers are not required to record the common cold and flu; however, COVID-19 is recordable if the employee is infected with COVID-19 on the job. It will certainly be difficult to know whether or not COVID-19 was obtained on or off duty but the guidance still talks about the employer’s duties. Practically speaking, it may be difficult for employers to determine whether an infection occurred on or off-duty. In such cases, OSHA notes that employers “must evaluate the employee’s work duties and environment” to decide whether exposures at work caused or contributed to the employee’s COVID-19 infection.
Following the OSHA guidance is yet another “best practice” that employers can use to establish – both now or if challenged in the future – that it took the steps necessary to keep its employees safe during the crisis. Along with the Ohio Department of Health’s Stay-At-Home Order, dated March 22, 2020, and the CDC guidance, the OSHA guidance provides the framework for employers and companies to follow in its effort to provide a safe workplace environment.
If you have any questions, please do not hesitate to contact Attorney Michael J. Bogdan (mbogdan@www.kwgd.com) at 330-497-0700 or any other KWGD Labor and Employment Attorney.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.