Given Current Required OSHA Standards in Place, Court Rejects ‘Emergency Temporary Standard’ Lawsuit in Response to COVID-19

Last month, The U.S. Court of Appeals for the District of Columbia Circuit rejected a lawsuit from the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) that requested the Department of Labor (DOL) and Occupational Safety and Health Administration (OSHA) issue an emergency temporary standard on infectious diseases in response to COVID-19.

The court ruled that the AFL-CIO (which first petitioned OSHA for an emergency temporary standard in March) claim lacked evidence and determined that the requested action was not necessary given existing standards. Acting OSHA administrator Loren Sweatt issued a statement saying they were pleased with the ruling and that OSHA will “…Continue to enforce the law and offer guidance to employers and employees to keep America’s workplaces safe.”

While additional regulations or an emergency temporary standard is not necessary given the existing regulations, some employers are still concerned about potential penalties and fines.

OSHA has not cited any businesses for COVID-19 violations as of yet. A task force created in July brought CalOSHA Inspectors to various essential businesses open during the pandemic to ensure employers are providing the necessary precautions, PPE and training for their staff. Materials and resources were provided during these visits and no citations have been issued at this time.

The following regulations are provided for review and should be used in handling COVID-19 related occurrences:

Recordkeeping OSHA 300 log (29 CFR Part 1904)

COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. A COVID-19 case must be recorded if all of the following are true:

  1. The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19)
  2. The case is work-related (as defined by 29 CFR 1904.5)
  3. The case involves one or more of the general recording criteria (set forth in 29 CFR 1904.7), e.g., medical treatment beyond first aid, days away from work).

Personal Protective Equipment (29 CFR 1910 Subpart I and 29 CFR 1926 Subpart E)

  • Require using gloves, eye and face protection, and respiratory protection when job hazards warrant it.
  • When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard. Covered later in the presentation

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

1910.132(b) Employee-owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.

General Duty Clause Section 5(a)(1), 29 USC 654 (a)(1)

The Occupational Safety and Health (OSH) Act of 1970 requires:

  • Employers to furnish to each worker “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.“
  • Employers can be cited for violation of the General Duty Clause if a recognized serious hazard exists in their workplace and the employer does not take reasonable steps to prevent or abate the hazard.
  • The General Duty Clauseis used only where there is no standard that applies to the particular hazard.

Bloodborne Pathogens 29 CFR 1910.1030

  • OSHA’s Bloodborne Pathogens standard applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions, that may contain SARS-CoV-2 (unless visible blood is present).
  • State Standards

*California has one of the most stringent plans, Aerosol Transmitted Disease standard as well as a bloodborne pathogens standard.

Workers in many occupations, including first responders, housekeeping personnel in some industries, nurses and other healthcare personnel, all may be at risk for exposure to bloodborne pathogens.

The provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.

Hazard Communication 29 CFR 1910.1200

  • Employers should be aware that common sanitizers and sterilizers could contain hazardous chemicals. Where workers are exposed to hazardous chemicals, employers must comply with OSHA’s Hazard Communication standard
  • Other applicable OSHA chemical standards. OSHA provides information about hazardous chemicals used in hospitals in the Housekeeping section of its Hospital eTool

Training is always a requirement where OSHA is concerned; anytime there is a hazard, training is required.

The Globally Harmonized Systems and recognition of PICTORIALS as well as the SDS’s is mandatory training… in our current situation, sanitizing has been greatly up scaled… new products may have been introduced… more staff exposure to their use…. Training is a must… documenting your efforts equally necessary

Respiratory Protection 29 CFR 1910.134

In the control of occupational diseases caused by breathing air contamination:

  • A respirator shall be provided to each employee when such equipment is necessary for their protection.
  • Provide respirators which are applicable and suitable for the purpose intended.
  • The employer shall be responsible for the establishment and maintenance of a respiratory protection program, which shall include the requirements outlined in the above mentioned standard
  • The program shall cover each employee required to use a respirator.

Coronavirus Disease 2019 (COVID-19) is a respiratory disease. It has spread from China to many other countries around the world, including the United States. Because of the severity of COVID-19’s international impacts, outbreak conditions—and rise to the level of a pandemic—has affected all aspects of daily life, including travel, trade, tourism, food supplies and financial markets.

To reduce the impact of COVID-19 outbreak conditions on businesses, workers, customers, and the public, it is important for all employers to now plan for COVID-19.

For employers who have already planned for influenza pandemics, planning for COVID-19 may involve updating plans to address the specific exposure risks, sources of exposure, routes of transmission, and other unique characteristics of Covid-19 (i.e., compared to pandemic influenza viruses).

Employers who have not prepared for pandemic events shall update their IIPP adding the PPP as well as train and prepare themselves and their workers, especially as we face the potentially worsening outbreak conditions.

Keep in mind, the information is changing daily

At present OSHA feels developing an Emergency Temporary Standard to specifically address Covid-19 is NOT necessary if standing standards are adhered to.

About Delia Guzman

As Bolton's Senior Safety & Health Professional, Delia L. Guzman provides Bolton clients with a range of loss control services and expert perspective. She is committed to Identifying and mitigating risks as well as providing solutions and remedies to employers and their employees to aid in the reduction of work-related injuries and traumas.

Subscribe to the Bolton Blog