As states are beginning to reopen, businesses are assessing what operations will look like. One area that businesses need to think about is workplace safety.
Under the Occupational Safety and Health Act (the “Act”), employers have a duty to provide a safe working environment to its employees. Failure to do so can result in hefty fines to a business.
The Occupational Safety and Health Administration (“OSHA”) recently released guidance on this issue in light of the COVID-19 pandemic. Here is a summary:
THE ACT
Most businesses must comply with the Act, which covers over 120 million workers at 8 million workplace locations (the Act does not apply to some farms or certain industries covered by other laws, such as mining). To comply with the Act, businesses are expected to implement a hierarchy of safety controls to ensure workplace safety. These hierarchy of controls are (in order from most effective to least effective): eliminate the hazard; engineering controls; administrative controls; safe work practices; and lastly, personal protective equipment (“PPE”).
For some types of workplace hazards, OSHA has established specific standards that provide the methods businesses are required to follow. Anything not covered by a standard is covered by the “General Duty Clause,” which requires businesses to provide workplaces that are “free from recognized hazards that are causing or likely to cause death or serious physical harm.”
COVID-19 GUIDANCE FROM OSHA
OSHA has not issued specific standards for COVID-19. As such, COVID-19 workplace safety is covered by the General Duty Clause. OSHA has, however, published a COVID-19 safety guide (“Guide” or “Guidelines”) that provides businesses with ways of assessing the risk of the workplace, implementing the hierarchy of safety controls, record keeping, and plan for enforcement.
ASSESSING THE RISK
The first step to providing a safe workplace is determining the level of risk. The Guidelines provide four categories of risk:
Very High: High potential for exposure to infected or potentially infected persons due to specific activities, such as certain healthcare workers and morgue caretakers.
High: High potential for exposure to infected or potentially infected persons, such as healthcare support workers and medical transporters.
Medium: Jobs that require frequent and/or close contact with the general public, such as high-volume retail and high population density work environments.
Low: Workers that have minimal occupational contact with the public or other coworkers.
IMPLEMENTING THE HIERARCHY OF SAFETY CONTROLS
Once a business determines the level of risk, the next step is to utilize the hierarchy of safety controls to provide a safe workplace. The Guide provides examples for implementing controls at each stage of the hierarchy.
1. Eliminate the risk. Eliminating the risk is the first action in the hierarchy of controls. However, this is not something that can currently be achieved for COVID-19. Nor is there an expectation by OSHA a business will be able to provide a workplace without any risk of COVID-19.
2. Engineering controls. Engineering controls isolate workers from work-related hazards. Here are some examples of engineering controls that can be implemented for COVID-19:
- Installing high-efficiency air filters;
- Installing physical barriers, such as plastic sneeze guards; and
- Installing drive thru windows.
3. Administrative controls. Administrative controls require action by the worker to reduce the risk. OSHA provides a number of examples that can be implemented for COVID-19, including:
- Encouraging sick workers to stay home;
- Providing training and education on protective behaviors; and
- Replacing face to face meetings with virtual meetings.
4. Safe Work Practices. Safe work practices are procedures that reduce duration, frequency, or intensity of exposure to a hazard. OSHA provides the following examples that can be implemented for COVID-19:
- Providing personal hygiene resources, such as hand soap, no-touch trash cans, disinfectants, and disposable paper towels;
- Posting handwashing signs in restrooms; and
- Requiring regular handwashing or alcohol-based hand rubs.
5. PPE. OSHA considers engineering and administrative controls as more effective than PPE and states PPE should not be used in place of engineering and administrative controls. PPE includes gloves, face masks, and goggles. PPE must be selected based on the hazard, properly fitted when worn, replaced when required, regularly inspected, and properly removed and cleaned/disposed of.
RECORDKEEPING
OSHA requires businesses to keep records related to workplace incidents. The guidelines require businesses to keep records if a worker becomes ill with COVID-19 and if the worker’s exposure is work related. OSHA has acknowledged, however, that for most workplaces (not including the healthcare industry), it will be difficult to determine whether the worker was exposed at work. As such, OHSA will not enforce recordkeeping requirements, unless there is objective evidence that the COVID-19 exposure occurred at work. In these instances, the business must comply with the recordkeeping requirement.
ENFORCEMENT
Under the Act, OSHA has the authority to conduct on-site inspections and the ability to fine businesses that do not implement safety controls to protect workers.
For COVID-19, OSHA will prioritize onsite inspections for fatalities and imminent danger of exposure. When deciding whether to fine a business, OSHA will take a business’ good faith efforts to comply with workplace safety requirements into consideration. The factors considered in determining “good faith” are:
- Did the business explore all available options in order to comply with applicable standards?
- Did the business implement interim engineering and administrative controls?
- Did the business reschedule required activities as soon as possible?
Beware, fines will be issued for businesses that cannot demonstrate any efforts to comply.
WHAT SHOULD YOU DO AS AN EMPLOYER?
You must first start with assessing the level of risk of COVID-19 at your workplace using the OSHA guidelines above. Depending on the level of risk, you next assess the safety control hierarchy and determine the most effective safety controls to protect your workers from COVID-19. The higher up in the hierarchy, the better. Then, implement the safety controls in a meaningful way. And, be sure to document each step!
Please note that a worker has the right to request an OSHA inspection. NEVER retaliate against a worker who contacts OSHA, as you can be heavily fined for taking such action.
If you are in doubt or need assistance, Ser & Associates can assist you with reviewing your workplace COVID-19 risk and determining which safety controls to implement. Please contact us today at 305.222.7282! And, please be sure to visit us at www.Ser-Associates.com, follow us on Instagram, Facebook, and/or LinkedIn.
