OSHA and COVID-19: Ten Questions Frequently Asked By Employers

QUESTION 1: Should employers be concerned about OSHA compliance regarding COVID-19, and if so, what are the applicable laws and regulations?

ANSWER: Employers may need to be concerned about OSHA compliance concerning COVID-19. OSHA has jurisdiction over virtually all private sector employers in all states, and over both public and private sector employers in 22 states that run their own OSHA programs. Whenever OSHA has jurisdiction, it can enforce the “General Duty Clause” of the OSH Act which requires employers to furnish their employees with “a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to the employees.” Additionally, depending upon the circumstances, the following regulations may apply to employers that are under OSHA’s jurisdiction:

• Recordkeeping and reporting occupational injuries and illnesses, 29 CFR §1904;
• Eye and face protection, 29 CFR §1910.133 and §1926.102;
• Respiratory protection, 29 CFR §1910.134 and §1926.103;
• Sanitation, 29 CFR §1910.141 and §1926.51;
• Hazard communication, 29 CFR §1910.1200; and
• Personal protective equipment, 29 CFR §1910.132 and §1926.95.

QUESTION 2: What does OSHA expect of employers?

ANSWER: OSHA expects employers to: (a) conduct job hazard assessments; (b) develop preparedness plans that address potential worker exposure to the virus and implement infection prevention measures, including social distancing, face coverings, hand hygiene, respiratory etiquette, and frequent cleaning and disinfecting; and (c) effectively train workers on the preparedness plan.

QUESTION 3: Does OSHA require employers to provide or pay for face masks?

ANSWER: No. Face masks are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for their own protection. As such, OSHA’s PPE standards do not require employers to provide or pay for face masks, even if the employers require them to be worn.

QUESTION 4: What if an employer requires a worker to wear a respirator?

ANSWER: The employer must follow OSHA’s comprehensive Respiratory Protection Program (“RPP”) requirements, which involve medically evaluating workers to determine whether they can safely wear a respirator, fit-testing the respirator, training on proper use and care of respirators, and developing and maintaining a written RPP.

QUESTION 5: What if a worker wants to use a respirator, and supplies his or her own respirator?

ANSWER: If an employee is allowed to voluntarily use a “filtering facepiece” respirator (e.g., an N95 respirator), then the employer must provide the employee with a copy of Appendix D to OSHA’s RPP standard, which discusses how to be certain the respirator itself does not present a hazard. If the employee uses any other type of respirator that is not a filtering facepiece respirator, then the employer must establish and implement an OSHA-compliant RPP (including a written plan, medical evaluations, fit-testing, etc.).

QUESTION 6: When does an employer need to record a confirmed case of an employee with COVID-19?

ANSWER: Employers that are required to keep the OSHA 300 Log of Work-Related Injuries and Illnesses should record a confirmed case of COVID-19 if the employer determines that the case is work-related and involves death, days away from work, restricted work, transfer to another job, medical treatment beyond first aid, or loss of consciousness.

QUESTION 7: So how does an employer determine whether or not a case of COVID-19 is work-related?

ANSWER: OSHA understands that this is a difficult determination, but nevertheless requires an employer to conduct a “reasonable investigation” to determine work-relatedness by doing the following

• Asking how the employee believes he or she contracted the illness;
• Discussing the employee’s work and out-of-work activities that may have led to the illness;
• Reviewing the employee’s work environment for potential COVID-19 exposure; and
• Accounting for subsequent information that may be received after the initial determination.

QUESTION 8: What if an employer takes adverse action against an employee for raising workplace safety or health concerns related to COVID-19?

ANSWER: Section 11(c) of the OSH Act prohibits employers from retaliating against workers for raising a health or safety concern or reporting a work-related injury or illness. Workers have just 30 days to file a retaliation complaint with OSHA. Only the Department of Labor can sue, as employees have no private right of action under Section 11(c). Therefore, an employer should never take action against an employee for raising a health or safety concern. That said, if an employee refuses to work due to COVID-19 concerns that are unreasonable in light of the facts, then the employer may take adverse action against the employee due to his or her refusal to work (and not because the employee expressed safety concerns).

QUESTION 9: If an employer has an employee sign a liability waiver, will it prevent the employee from filing a complaint with OSHA about safety, health, or retaliation?

ANSWER: No. Workers continue to have the right to raise and file safety or health complaints under Section 8(f) and/or a retaliation complaint under Section 11(c), regardless of any language in a waiver. Moreover, prospective waivers of liability from employees are simply a bad idea. They are generally unenforceable and unwise.

QUESTION 10: Does OSHA require an employer to notify other employees if a worker gets COVID-19?

ANSWER: No, however employers must take appropriate steps to protect other workers from coronavirus exposure in the workplace. These steps might include cleaning and disinfecting the work environment, notifying other workers to monitor themselves for signs/symptoms of COVID-19, and providing on-site COVID-19 testing.