As employers receive more information about the COVID-19 pandemic, they have important questions about how to keep their employees safe at work and what are their legal obligations to do so. While every work environment may be different and the risks may vary to some extent, we have answered some frequently asked questions to provide generally guidance to employers based on requirements that may apply under the Occupational Safety and Health Act of 1970 (“OSHA Act”).

Employers should recognize that in many locations, State or local authorities may be issuing emergency orders or ordinances that would supersede generally applicable OSHA standards or requirements. Also, our understanding of the risks and issues remains evolving. Because recommendations are changing frequently, we intend to provide periodic updates when new information becomes available.

Q:        Are there special OSHA rules for COVID-19 that businesses need to follow?

A:        No. OSHA has provided a guidance document for employers, but, in general, OSHA would base its enforcement on the General Duty Clause of the OSHA Act, which requires employers to provide a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm. Employers should look to CDC’s COVID-19 guidance to business.

Per OSHA guidance, employers must assess the respective risk level their work presents; employers in industries or communities with low risk of exposure must prepare differently than employers with medium, high, or very high risk of exposure to known or suspected sources of COVID-19. OSHA has identified healthcare, death care, laboratory, airline, border protection, and solid waste and wastewater management as industries on the higher end of the risk spectrum, and has provided specific recommendations to employers in these industries.

Employers outside of these industries have been advised to:

• Develop an infectious disease preparedness and response plan;
• Prepare to implement basic infection prevention measures such as promoting proper hygiene and implementing routine cleaning and disinfecting practices;
• Develop policies and procedures for prompt identification and isolation of sick people, if appropriate;
• Develop, implement and communicate about workplace flexibilities and protections; and
• Implement workplace controls, ranging from physical barriers to protect against the spread of COVID-19 (e., engineering controls) to providing personal protective equipment.

California employers should note that Cal/OSHA released Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease. These guidelines highlight that California requires “employers covered by the Aerosol Transmissible Diseases (ATD) Standard (California Code of Regulations, title 8, section 5199) to protect employees from airborne infectious diseases such as COVID-19 and pathogens transmitted by aerosols.”

Q:        If we have a retail or customer-facing business, should we provide gloves and face masks to our employees?

A:        At this time, there is no general requirement for non-healthcare employees to wear masks, gloves, or other types of personal protective equipment (PPE). In its guidance, the CDC is not recommending use of facemasks or any other protective equipment by the general public or outside of a healthcare setting. Because the CDC and WHO do not recommend masks, gloves, or other PPE for individuals who are not displaying symptoms, employers should carefully consider whether to provide masks or gloves, or whether to allow employees to wear them on a voluntary basis, if requested.

Employers who do not normally issue PPE to employees should understand that under applicable OSHA Standards, employers who provide PPE also must do so in conjunction with a broader assessment of risks and hazards, which includes considerations of whether there were other ways to protect employees, such as access limitations, cleaning, etc. In assessing potential hazards in a manner consistent with PPE standards, employers should consider whether or not their workers may encounter someone infected with COVID-19 in the course of their duties. Employers should also determine if workers could be exposed to environments or materials contaminated with the virus. Employees must also be trained on the proper use and disposal of PPE. In the case of respiratory protection equipment, such as the N95 respirator, employers must make sure that respirators properly fit employees, provide them with a medical exam, and otherwise comply with the Respiratory Protection Standard. If an employer does not follow these steps, OSHA may be concerned that the employer may have increased risks to employees by giving them a false sense of security, and may issue citations.

These rules could apply even if the employer thought that they were allowing employees to use protective equipment on a purely voluntary basis. For example, if an employee were to wear a surgical face mask to work on a voluntary basis, the employer has an obligation to provide make sure that the employee is not creating a hazard and provide the information with information about, among other things, how to keep it clean. There are additional steps that an employer needs to take if the employee is asking to wear an N95 respirator. Employers should understand that wearing a face mask impedes normal breathing to some extent and could create a problem for employees with undetected asthma or a heart condition. Employers should confirm applicable requirements in response to any request to use protective gear or before issuing protective gear to employees.

Q:        What OSHA training requirements may apply if we are ramping up our safety precautions in response to COVID-19?

A:        If an employer introduces additional PPE (e.g., gloves, masks, smocks, etc.) or hazardous chemical (such as cleaning solutions) into the workplace, employees may need additional training, as noted above. Among other considerations, although OSHA normally does not apply its hazardous chemical standards to household cleaning supplies that are used consistent with home use, employers that ramp up their sanitation efforts might need to review safety issues with employees who might be using a product available on a grocery store shelf. Although OSHA has relaxed the standard somewhat for the healthcare industry, other employees who are required to use respiratory protection devices (such as the N95 face mask) should have current fit tests and otherwise should be working in full compliance with the Respiratory Protection Standard. Depending upon changes in job duties, staff may need to be trained under the Bloodborne Pathogens Standard and be offered a vaccination. Employers should consider providing additional training and regular safety talks based on COVID-19 concerns and changes in duties.

Q:        If we bring in additional cleaning supplies and chemicals to sanitize or disinfect the workplace, are there OSHA issues that need to be considered?

A:        Yes. Common sanitizers and sterilizers could contain hazardous chemicals. Where workers are exposed to hazardous chemicals, use household cleaners more frequently than everyday household rates, or new chemicals are introduced into the workplace, employers must comply with OSHA’s Hazard Communication standard. Among other things, employees should be trained on the specific hazards of the chemicals to which they may be exposed, as well as the steps that they should take in the event that there is an accidental spill or if there are steps that the employee should take if they get a chemical in their eyes or on their skin. Employers should also consider whether additional PPE would be required, such as gloves, masks, sleeves, or aprons. Also, the CDC has issued guidance on cleaning after an employee or person in the workplace has been diagnosed with COVID-19. 

Q:      Do employers have safety obligations to employees who are working from home?

A:        In some cases, yes. In 2000, OSHA stated that its policy was not to hold employers liable for employees’ home offices, and that OSHA does not expect employers to inspect the home offices of their employees. OSHA generally does not conduct inspections inside homes, and employers are certainly not required to ensure the safety of non-working areas of their employees’ homes. OSHA may take a different approach to home-based manufacturing or assembly operations, however. Nevertheless, employers may be required to report serious injuries or fatalities to OSHA, and record injuries for home-based employees. In some cases as well, employers could face workers’ compensation claims from employees who were working at home and should take steps to assess potential coverage for such claims. For these reasons, when employees set up home offices, safety should be part of the discussion. To reduce the risk of liability, employers should understand what portion of the home employees are using and what times of day employees are working.

Q:        Do employers need to record COVID-19 illnesses on our OSHA 300 logs?

A:        In some cases, yes. OSHA requires employers to record work-related illnesses, which, unlike the flu or the common cold, could include COVID-19, if the employee was exposed to the virus while working. Employers are required to assess whether an employee contracted the illness while at work based on the circumstances. Employers should be cautious of “over-recording” illnesses, as an over-report of illnesses will result in the employer maintaining unusually high numbers of lost days for injuries or illnesses, which could create difficulties for businesses that need to disclose injury and illness records when bidding for work or could result in an inspection.