LEGAL: COVID-19 and OSHA: What to know…

By Jeff Jones
Special to the UCBJ

As the COVID-19 virus rages on, employers continue to grapple with compliance issues in the workplace. Among those issues is compliance with the General Duty Clause and other workplace standards of the Occupational Safety and Health Act of 1970.  

On Dec. 4, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that since the beginning of the pandemic through Nov. 26, 2020, it has issued citations arising from 255 inspections for violations relating to coronavirus, resulting in proposed penalties totaling over $3,000,000.  The most frequently-cited violations have been: 

  1. Failure to implement a written respiratory protection program; 
  2. Failure to provide a medical evaluation, respirator fit test, training on the proper use of a respirator and personal protective equipment; 
  3. Failure to report an injury illness or fatality; 
  4. Failure to record properly an injury or illness as part of OSHA recordkeeping; and 
  5. Failure to comply with the General Duty Clause of the Act.  

There are several components required to each of the above-noted compliance measures. For example, compliance with the respiratory protection standard includes medical evaluation, fit testing, the written respiratory protection program, and effective employee training related to the program, which includes being able to demonstrate proper fit and usage of the respirator. OSHA has also issued a six-page document intended to help employers understand these most frequently cited violations, which can be found at https://www.osha.gov/SLTC/covid-19/covid-citations-guidance.pdf

As part of OSHA’s efforts to protect employees, it has recently updated its FAQs addressing the use of cloth face coverings as personal protective equipment (PPE) and whether such coverings constitute PPE under OSHA guidelines. The bottom line is OSHA is not able to state categorically that a cloth face covering constitutes PPE under the OSHA standard. 

As most are aware, there are differences between (1) cloth face coverings, (2) surgical masks, and (3) respirators. Cloth face coverings are most commonly commercially produced, or improvised scarves or bandanas, with the concept being that the garment, when worn over the nose and mouth, protects against the wearer’s potentially infectious respiratory droplets from being spread when the individual coughs, sneezes or talks – and thus, limits the spread of COVID-19.  These commercially produced cloth face coverings are not currently considered PPE by OSHA. These coverings will not protect the wearer against airborne transmissible agents, due to a loose fit or lack of a proper seal.  

OSHA takes the position that these are not appropriate substitutes for PPE such as N95 respirators, medical facemasks, etc. particularly in workplaces where respirators or facemasks are recommended or required to protect the wearer. At this time, OSHA does not believe enough information is available to determine whether a cloth face covering provides sufficient protection from COVID-19 to be considered PPE under OSHA’s standard at 29 CFR 1910.132.

In addition, on Dec. 9, OSHA released a video providing the following (5) familiar tips to keep employees safe during the holidays: 

  1. Train workers on safe practices such as facemasks and social distancing; 
  2. Maintain social distancing between workers and customers; 
  3. Encourage workers to stay home if they are sick; 
  4. Clean and disinfect work surfaces and equipment; 
  5. Encourage workers to report any safety and health concerns.

All of the foregoing reflects OSHA’s continued emphasis on compliance with applicable standards and enforcement efforts related to the pandemic. Employers should continue to assess the COVID-19 hazards in their workplace and ensure compliance with applicable standards. Handing out masks or respirators to employees or making them available for the taking may not be enough. If employees are required to wear PPE, they must be trained in accordance with OSHA guidelines. 

Likewise, just handing an employee a bottle of disinfectant or cleaning agent may not be sufficient if the employee is not trained on the “cleaning time” or “kill time” applicable for each substance or how to clean and disinfect effectively, while meanwhile protecting themselves during the process. In addition, it is essential to maintain documentation of training, policies, and other compliance measures in the workplace.  

Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.

This site uses Akismet to reduce spam. Learn how your comment data is processed.