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Stephanie Angkadjaja, Tom Van Wyngarden, Pillsbury Winthrop Shaw Pittman LLP

The U.S. Occupational Safety and Health Administration (OSHA) has provided guidance specific to the coronavirus/COVID-19 pandemic.
  • An employer has a duty to provide a safe workplace, free from hazards that may cause death or serious physical harm.
  • That general duty requires employers to assess hazards, evaluate risks, and implement controls.
  • OSHA provides specific recommendations and controls for each of the four levels of worker exposure risk.

Employers searching for guidance on how to manage a pandemic in the workplace should first look to two primary Occupational Safety and Health Administration (OSHA) requirements. Under OSHA’s General Duty Clause, employers have a duty to provide employees with a “place of employment … free from recognized hazards that are causing or are likely to cause death or serious physical harm ….” 29 U.S.C. § 654(a)(1). Requirements for gloves, eye and face, and respiratory protections are found in OSHA’s Personal Protective Equipment (PPE) standards, at 29 C.F.R. 1910 Subpart I for general industry. States with OSHA-approved State Plans should also look to their own requirements. For example, California requires employers to have an Injury and Illness Prevention Program, and the state has separate standards for PPE and Control of Harmful Exposures. See Cal/OSHA Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease (COVID-19)

OSHA has also issued a number of guidance materials. “Prevent Worker Exposure to Coronavirus (COVID-19)” is a one-page alert in which OSHA suggests the following practices: (1) assess potential worker exposure hazards, (2) evaluate exposure risk, and (3) select, implement, and ensure the use of controls (i.e., appropriate personal protective equipment, hygiene, and cleaning supplies). In its “Guidance on Preparing Workplaces for COVID-19,” OSHA outlines six basic steps employers can take to reduce worker exposure risk:

  1. Develop an Infectious Disease Preparedness and Response Plan
  2. Prepare to Implement Basic Infection Prevention Measures
  3. Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate
  4. Develop, Implement, and Communicate about Workplace Flexibilities and Protections
  5. Implement Workplace Controls
  6. Follow Existing OSHA Standards

The Guidance suggests specific recommendations and controls for each level of worker exposure risk. The four levels of risk are classified as very high, high, medium, and lower. Very high- and high-exposure risk jobs include those in the healthcare and laboratory fields. Medium-exposure risk jobs include those requiring “frequent and/or close contact” with the general public, such as those in the education and retail fields. Lower-exposure risk jobs do not require contact within six feet of the general public. Most American employees will likely fall in the lower- or medium-exposure risk levels. See also OSHA Fact Sheet 3747, “Protecting Workers during a Pandemic.”

Finally, OSHA’s COVID-19 webpage provides additional information on Hazard Recognition, Medical Information, and Control and Prevention. OSHA also provides information on other applicable standards and requirements, such as the Bloodborne Pathogens standard at 29 C.F.R. 1910.1030 and the OSHA 300 log injury and illness recordkeeping and reporting requirements at 29 C.F.R. Part 1904.

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