On the evening of March 9, 2020, the Occupational Safety and Health Administration (OSHA) issued a new guidance, “Guidance on Preparing Workplaces for COVID-19.” The guidance divides employers into four risk categories and provides recommendations on engineering controls, administrative controls, and personal protective equipment to protect employees from coronavirus.

OSHA’s guidance also contains recommended steps all employers can take to reduce employee risk of exposure to the coronavirus. These steps include:

• Development of an infectious disease preparedness and response plan

• Implementation of basic infection prevention measures (e.g., promoting frequent and thorough hand washing and encouraging workers to stay at home when sick)

• Development of policies and procedures for prompt identification and isolation of individuals who are ill

• Communication with employees about workplace flexibilities and protection (e.g., ensuring sick leave policies are flexible and permitting employees to stay home to care for a sick family member)

• Implementation of general engineering controls (e.g., installing high-efficiency air filters and increasing ventilation rates)

• Implementation of general administrative controls (e.g., discontinuing non-essential travel to locations with ongoing COVID-19 outbreaks)

• Implementation of PPE during an outbreak of COVID-19

The guidance also encourages employers with overseas workers to monitor the “Business Travelers” section of OSHA’s COVID-19 webpage, which primarily encourages employers to monitor CDC travel advisories. OSHA also recommends that employers communicate to workers that the U.S. Department of State cannot provide Americans traveling or living abroad with medications or supplies, even in the event of a COVID-19 outbreak.

Takeaways

OSHA’s guidance has good intentions, but in its attempt to answer employer questions, may generate new questions. It remains unclear how exactly OSHA may enforce efforts to protect employees from COVID-19. The guidance states “follow existing OSHA Standards,” but none were written with COVID-19 or any other infectious disease outbreak in mind. OSHA has long contemplated development and implementation of an infectious disease standard but to date has not done so.

OSHA also urges employers to adhere to the General Duty Clause, which requires employers to “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 General Duty Clause is a nebulous catchall provision, intended by Congress to be sparingly used when the agency has not yet developed a standard to address a specific hazard. Thus, it provides little help to employers.

Although the guidance states its recommendations “are advisory in nature” and create “no new legal obligations,” OSHA inspectors investigating coronavirus-related complaints in the workplace will no doubt compare an employer’s adherence to this guidance when evaluating whether the employer has met OSHA’s General Duty Clause. This may present enforcement challenges for OSHA if and when employers challenge citations based on non-adherence to the guidance.

The guidance is silent on common issues employers are currently encountering, such as what to do if employees wish to voluntarily wear surgery masks or respirators in the workplace. We recommend that employers continue to rely on CDC guidance on the matter. As of March 10, 2020, with the exception of the healthcare industry, the CDC does not recommend that the general public use facemasks or respirators. Instead, CDC recommends following everyday preventive actions, such as washing your hands, covering your cough, and staying home when you are sick.