The Occupational Safety and Health Administration (OSHA) has published a new set of Frequently Asked Questions related to COVID-19. The FAQs do not appear to provide any new guidance, but are grouped by topic for easier reference and are more user-friendly as a result.
Highlights of the FAQs include the following:
» Use of Personal Protective Equipment when cleaning and disinfecting the workplace. Cleaning operations that entail the use of hazardous chemicals may trigger the OSHA standard regarding use of personal protective equipment.
» Whether masks, which OSHA calls “cloth face coverings,” are required. OSHA states only that employees be encouraged to use them.
» Standards for employer protection of workers from COVID-19. The FAQs list a number of requirements that might apply, but the primary one is the General Duty Clause of the Occupational Safety and Health Act, which requires employers to provide employees with a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.”
» Whether an employer must provide restrooms and handwashing facilities for employees. OSHA has specific standards that require most employers to provide toilet and handwashing facilities.
» What an employer should do when an employee tests positive for COVID-19. The agency tells employers to take action to protect other employees, but does not require that other employees be notified.
» Whether an employer can require an employee who has concerns about COVID-19 to come to work. OSHA says generally yes, except under circumstances where the situation is urgent and so clearly hazardous that reasonable persons would believe they would be in serious danger if they returned to work. Depending on the circumstances, an employee with concerns about returning to work may also be protected by other laws, such as the Americans with Disabilities Act.
» Whether an employee can be fired for complaining about workplace safety and health concerns related to COVID-19. OSHA protects employees who complain about any unsafe working conditions.
Guidance, not rules
The agency defers to CDC guidelines for many of the answers to the questions, and is careful to note that the FAQs are not a standard or a regulation, and do not create any new legal obligations. This is consistent with the position that OSHA has taken in all of its guidance related to coronavirus.
There has been essentially no enforcement action taken against employers for COVID-19-related violations. Employee complaints result in a letter to the employer requesting very specific information on what the employer is doing to address COVID-19, but on-site inspections are rare.
As the crisis continues, and political and public attitudes change, OSHA’s policy may also change, especially in situations where an employer has a large number of COVID-19 cases, and is not following CDC and OSHA guidelines.
There are requirements, such as the General Duty Clause noted above, that OSHA acknowledges it could use as the basis for citations against such an employer. The agency has successfully used the General Duty Clause to cite employers in cases involving workplace violence and heat stress, which have resulted in far fewer employee fatalities than coronavirus.
Common Sense Counsel
Check out Constangy Coronavirus Return to Work FAQs for the latest guidance at www.constangy.com
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika. He can be contacted at firstname.lastname@example.org or 334-246-2901 He thanks his partners in the Firm’s OSHA Practice for their blog on this issue.
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