On July 2, 2020, the federal Occupational Safety and Health Administration (“OSHA”) published an FAQ web page based on COVID-19 related inquiries that the agency received from the public.  The FAQ page provides a central location for information and links on a variety of topics related to best practices to ensure worker safety and protect workers’ rights during the ongoing pandemic.  Although the majority of the guidance contained in OSHA’s responses is not new, employers should review the FAQ page to ensure their health and safety policies and procedures follow OSHA’s recommendations.  This article lists the topics covered by the new FAQ page and identifies a few topics that may be of particular interest to employers.

FAQ Topics Covered

The FAQs are grouped by topic and cover the following:

• General Information

• Cleaning and Disinfection

• Construction

• Cloth Face Coverings

• Employer Requirements

• Healthcare

• Personal Protective Equipment

• Restrooms and Handwashing Facilities

• Retaliation

• Return to Work

• Testing for COVID-19

• Training

• Worker Protection Concerns

The FAQ responses within each topic contain links to various guidelines and recommendations issued by OSHA and the U.S. Centers for Disease Control and Prevention (“CDC”).  Thus, the primary utility of the new FAQ page is to assist employers and workers with locating federal safety and health guidance elsewhere on the listed topics.  Employers seeking additional analysis on federal guidance should also consult the Employer’s Guide to COVID-19 and Emerging Workplace Issues and this blog’s articles on returning employees to work, infection control measures for offices, employee testing, and employee temperature checks.

Specific FAQ Responses for Employers to Note

The responses on the FAQ page vary between limited, general information containing links to other federal guidance and more detailed recommendations by OSHA on specific issues.  The responses below quote and summarize OSHA’s position on FAQs that may be of particular interest to employers and identify additional, relevant information for employers to consider.

Q: Should workers wear a cloth face covering while at work, in accordance with the CDC recommendation for all people to do so when in public?

A: “OSHA generally recommends that employers encourage workers to wear face coverings at work.”  However, OSHA also instructs that “[e]mployers have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances present at the work site.”  OSHA then identifies the following examples of when an employer may determine that wearing cloth face coverings presents or exacerbates a hazard.

• The cloth face covering could become contaminated with chemicals used in the work environment, causing workers to inhale the chemicals that collect on the face covering.

• The cloth face coverings might become damp (from workers breathing) or collect infectious material from the work environment (e.g., droplets of other peoples’ infectious respiratory secretions) over the duration of a work shift.

• Workers may also need to use PPE that is incompatible with the use of a cloth face covering (e.g., an N95 filtering facepiece respirator).

OSHA further advises that “[w]here cloth face coverings are not appropriate in the work environment or during certain job tasks (e.g., because they could become contaminated or exacerbate heat illness), employers can provide PPE, such as face shields and/or surgical masks, instead of encouraging workers to wear cloth face coverings.”  Thus, OSHA’s response essentially advises that employers should have employees wear some form of face covering, whether it be cloth or PPE where cloth face coverings provide insufficient protection.

Q: Is an employer required to notify other employees if a worker gets COVID-19 or tests positive for COVID-19?

A: “OSHA does not require employers to notify other employees if one of their coworkers gets COVID-19.”  However, OSHA also advises that employers must take appropriate steps to protect other workers from exposure to COVID-19 in the workplace, which may include “notifying other workers to monitor themselves for signs/symptoms of COVID-19” after learning of an employee’s confirmed case.  OSHA’s response further notes that the CDC “recommends employers determine which employees may have been exposed to the virus and inform employees of their possible exposure to COVID-19 in the workplace.”  Therefore, in most circumstances the prudent course for employers is to notify employees who may have been exposed to COVID-19 through recent, close contact with an infected employee (without violating federal, state, and local laws on confidentiality and privacy by disclosing the infected employee’s identity) and take additional steps, such as quarantining potentially infected employees, as necessary.  That course is especially advisable in states like California that have separate OSHA-approved State Plan guidance that specifically instructs employers to inform employees of their possible exposure to COVID-19 in the workplace.

Q: Can my employer force me to work if I have concerns about COVID-19, including a coworker having tested positive, personal medical concerns, or a high-risk family member living at my home?

A: OSHA advises that employers generally may require employees to work during the COVID-19 pandemic so long as state and local governments permit the employer’s business to remain open.  However, OSHA also notes that section 11(c) of the Occupational Safety and Health Act provides workers with more than just protection against retaliation for complaints about a health or safety hazard.  Under 29 C.F.R. § 1977.12(b), an employer may not discipline an employee for refusing to work or perform certain assigned tasks under the following circumstances:

• The worker has a good faith belief that they face death or serious injury;

• The situation is so clearly hazardous that any reasonable person would believe the same;

• The situation is so urgent that the worker does not have time to eliminate the hazard through regulatory channels, such as calling OSHA; and

• The worker tried, where possible, to get his or her employer to correct the condition, was unable to obtain a correction, and there is no other way to do the job safely.[1]

OSHA further instructs employers to consult guidance from the U.S. Equal Employment Opportunity Commission to learn more about reasonable accommodations.

In light of OSHA’s response to this FAQ, the preferable course for an employer faced with an employee who refuses to work because of COVID-19 concerns is to first engage in the interactive process with the employee to understand the employee’s concern(s) and attempt to address and resolve the concern(s) through reasonable accommodation(s).  Employers should document all discussions and pursue discipline or termination as a last result if alternative options like unpaid leave or telework are not possible.  Moreover, employers should seek advice from experienced employment law counsel before separating an employee under these circumstances.

Takeaway

By now, most employers are familiar with the general COVID-19 guidance that OSHA continues to publish.  Nonetheless, employers should still monitor federal, state and local guidance closely for updates and refine their COVID-19 policies and reopening plans accordingly, especially as confirmed cases increase throughout much of the country.  Employers with any questions or concerns should consult with experienced OSHA counsel to ensure they are satisfying all of the increased safety and health obligations and complications brought on by the pandemic.

As you are aware, things are changing quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where things currently and generally stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

[1] OSHA’s FAQ page includes an “or” when reciting the conditions required for protection from retaliation when an employees refuses to work.  However, the text of 29 C.F.R. § 1977.12(b) makes clear that each of the four conditions outlined above are necessary.  See also NLRB v. Tamara Foods, Inc., 692 F.2d 1171, 1181-82 (8th Cir. 1982).