In developing plans to cope with the coronavirus (COVID-19), employers must strike the right balance between Occupational Safety and Health Act (OSHA) requirements and restrictions on employees’ privacy and the Americans with Disabilities Act (ADA). Several key requirements are particularly relevant, and agency guidance on these topics is rapidly evolving.
First, employers are subject to a “general duty” under the Federal Occupational Safety and Health Act to “furnish to each of [their] 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 [their] employees.” 29 U.S.C. § 654(a)(1). OSHA interprets this general duty clause to require employers to take feasible and useful methods to correct recognized hazards that are likely to cause serious injury or death. In the context of infectious diseases, OSHA often incorporates by reference the Centers for Disease Control and Prevention recommendations and guidelines as informative on what hazards are “recognized,” and what employer responses are “feasible” and “useful.” See, e.g., 2009 OSHA H1N1 Guidance at 18.
Consistent with these precedents, the OSHA recently issued a COVID-19 guidance document (“OSHA COVID-19 Guidance”) that recommends that employers follow CDC and state and local health department recommendations, in addition to the practices OSHA recommends. OSHA itself has provided a wide range of recommendations for low and medium risk jobs (i.e., most jobs outside the healthcare field), including:
- Promote employee handwashing and generally educate employees about the situation;
- Encourage workers to remain at home if sick;
- Minimize face-to-face interactions, including considering telework;
- Develop policies and procedures for employees to report COVID-19, and the response to any cases;
- Regularly disinfect surfaces using EPA-approved cleaning products;
- Provide gloves, gowns, face masks, or goggles to employees as appropriate, and in certain “rare” circumstances, respirators.
While following OSHA and CDC recommendations is not mandatory as a matter of federal law, adhering to those recommendations provides a likely “safe harbor” from claims that employers failed to comply with the general duty clause or otherwise to adequately protect their employees.
OSHA has also provided updated “interim” guidance for employers in certain sectors, which it continues to revise. For example, OSHA has recently advised that “[g]enerally,” employees in the solid waste and wastewater industries do not need to take extra precautions.
Second, OSHA has stated that its standard relating to personal protective equipment may apply. That standard generally requires employers to provide personal protective equipment “if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE).” This can extend to the use of respirators. Currently, the OSHA COVID-19 Guidance indicates that it is “rare” that respirators would need to be used other than by those in high or very high risk fields, which the guidance generally defines as the healthcare and medical sector.
Third, other OSHA standards could also apply, such as the bloodborne pathogen standard, and the requirement to record illnesses. The bloodborne pathogen standard requires employers to take a number of steps to control reasonably anticipated employee exposure to blood and other potentially infectious bodily fluids. OSHA has explained that the standard may not apply directly to the respiratory secretions caused by COVID-19, but nevertheless it provides “a framework that may help control some sources of the virus.” The requirement to record illnesses would apply if an employee contracted COVID-19 as a result of exposure in the workplace, and the case satisfies one of the general criteria for recording illnesses (e.g., results in days away from work).
Fourth, 28 states have authority to impose requirements more stringent than those of OSHA. A number of state OSHA agencies have issued their own guidance. For example, California has advised employers not covered by the state’s specific Aerosol Transmissible Disease standard to follow CDC guidance.
Finally, when implementing measures to combat the spread of the coronavirus and COVID-19 in the workplace, employers will want to be cognizant of other requirements, including those imposed by privacy laws and the Americans with Disability Act (“ADA”). Notably, the Equal Employment Opportunity Commission has issued guidance under the ADA explaining that where a disease is declared a pandemic, employers may have some latitude to take certain actions (e.g., monitoring of temperature) that would otherwise be impermissible. The EEOC recently updated this guidance in response to the COVID-19 outbreak, explaining for example that “[b]ecause the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.” As this revised guidance indicates, employers must still take care to comply with all federal and state requirements, and ensure that precautions—particularly precautions taken voluntarily or pursuant to the relativity malleable general duty clause, as opposed to specific OSHA or state mandatory standards—do not run afoul of other compliance obligations.
If you have any questions concerning the material discussed in this client alert, please contact the following members of our Employment practice.
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