While still considering whether to propose a specific workplace standard covering COVID-19 exposure, the Occupational Safety and Health Administration (OSHA) has updated guidance to employers on protecting workers from Covid-19 infection. The guidance is intended to inform employers and workers in most workplace settings and to help them identify risks of being exposed to and/or contracting COVID-19 at work and to help them determine appropriate control measures to implement.
James Frederick, acting head of OSHA, said the aim is to “truly focus on workers with the biggest need for assistance. OSHA has limited resources, and we want to utilize them the best we can.”
Under the Occupational Safety and Health Act, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. As such, the COVID-19 pandemic has created new and complex challenges for employers.
The guidance is advisory but U.S. Department of Labor Office of the Inspector General has noted it could be used to support violations of the OSH Act’s “General Duty Clause” by establishing recognized hazards and feasible means to correct them.
The General Duty Clause provides an employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
The following elements are necessary to prove a violation of the General Duty Clause:
1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
2. The hazard was recognized;
3. The hazard was causing or was likely to cause death or serious physical harm; and
4. There was a feasible and useful method to correct the hazard.
OSHA has also announced a new enforcement program targeting employers that put the most workers at serious risk of virus exposure, or that retaliate against workers who report unsafe conditions, including healthcare, meat packing, grocery stores, restaurants and prisons, where workers are frequently in close contact with others.
The agency said it will also use data it has collected on reported COVID-19 fatalities and illnesses to plan unannounced inspections and follow-up visits to workplaces with a history of infections.
“Some employers can expect to be subject to more COVID-19-related onsite inspections.” Says John Sarno, president of the Employers Association of New Jersey.
“While specific industries are going to get a closer look, I think it’s important for employers to review these updated guidance documents that OSHA has provided,” he said.
Join John Sarno on April 16th for a summary of OSHA’s updated guidance in a one-hour webinar