Coronavirus and US Safety and Health Law

From Legal News and Analysis on Coronavirus:

For Employers: Coronavirus and US Safety and Health Law

The coronavirus, and the illness caused by the coronavirus, COVID-19, are dominating headlines, stock markets and daily conversation. They are also raising many questions—and employers inVirus the U.S. are facing one such critical question: How do we help ensure the health and safety of our employees? Squire Patton Boggs helps provide some answers below.

Employer Duties

Nearly all employers in the U.S. have a statutory duty to comply with occupational safety and health standards promulgated by the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA). . . .  Therefore, it is important for employers to know and understand what specific OSHA standards may be implicated by and apply to the coronavirus.

In addition, nearly all employers in the U.S. have a statutory duty 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.”[2]  As the coronavirus spreads, and invariably becomes more of a recognized hazard in the workplace every day, employers should evaluate their current health and safety protocols and implement additional best practices, as needed, to help ensure a safe work environment.

Occupational Safety and Health Standards

OSHA does not have a standard specific for the coronavirus or COVID-19.  However, per agency comments thus far, it is possible that OSHA could attempt to use and enforce a variety of current OSHA standards to the extent that coronavirus presents an occupational exposure risk.  Thus, employers should be aware of and familiarize themselves with the following OSHA standards:

  • The General Duty (referenced above) to provide a workplace free from recognized hazards.  This standard requires employers to take reasonable steps to ensure a safe and healthy work environment.  Such reasonable steps could include providing information regarding coronavirus and COVID-19 to employees, developing a safety and health policy, communicating and training employees on the policy, and enforcing that policy.
  • Personal Protective Equipment (PPE) standards, which generally require the use of gloves, eye and face protection and respiratory protection.[3]  When respiratory protection is necessary, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard.[4]  The Respiratory Protection standard is technical and should be evaluated on a case-by-case basis.
  • Recordkeeping standards require covered employers to record certain work-related injuries and illnesses.[5]  While the common cold and flu are not required to be recorded,[6] OSHA’s current position is that COVID-19 is required to be recorded when an employee is infected with coronavirus and falls ill in the course of employment.
  • General Environmental Control standards cover specific requirements for workplace sanitation, including general housekeeping, waste disposal and washing facilities.[7]
  • The Bloodborne Pathogens standard applies to occupational exposure to human blood.[8]  While the coronavirus is not presently known to be transmitted through bloodborne pathogens, OSHA advises that this standard could still provide a framework for controlling coronavirus exposure to the extent transmitted via bodily fluids more generally.

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