While the majority of Coronavirus related information being disseminated over TV, internet and word of month applies to public health and safety, we wanted to do our best to distill it down to how it applies to occupational health and safety, which is what employers really need to be aware of.  In the US, OSHA and CDC (Center for Disease Control) are the primary agencies offering occupational guidance for employers and businesses.

Knowing this information and following available guidance will not only help protect you and your employees from potential harm, but also your business from potential associated risks including OSHA enforcement and civil & criminal liabilities.

Before getting into the details, please be aware that this information is based on what’s currently known and recommended regarding Corona Virus Covid 19, which could change over time.

Also be aware that this information is limited and is only intended to provide a summary of major guidance provided by OSHA and CDC for employers and won’t include widely known “medical information” such as definitions of the Coranvirus, spread methods, etc.

We recommend that your company review this summary information and guidance to help ensure that you’re covering the basics, and if not, click on the links provided at the end of this document for more detailed information.  This summary should not be considered a substitute for reading and acting on actual guidance. 

With that said, let’s get on with it…..

What Does OSHA Say About Coronavirus?

Since OSHA is charged with managing and enforcing occupational health and safety issues in the US, let’ start here.

OSHA’s website has several pages devoted to Coronavirus/Covid-19 however I found that these pages often contain same/repeated information which makes it more difficult to understand and follow their guidance and recommendations.  As a result I’ve identified and summarized their major points below.

Before getting into that, be aware of these relevant background facts:

  • Many OSHA standards date back to the 1970’s and haven’t been updated since that time, and it takes many years for OSHA to enact new occupational legislation, so don’t count on, or worry about OSHA coming up with any new laws impacting how employers should manage and control Corona Virus any time soon.
  • OSHA standards only address a small percentage of all of the occupational health and safety hazards which exist in the workplace, and in cases where they don’t have specific laws, they defer to other agencies who do offer guidance on those hazards. Examples include NIOSH, NFPA, and in the case of Coronavirus, OSHA largely defers to CDC (Centers for Disease Control).

Here’s a brief summary of coronavirus/covid-19 information and guidance found on OSHA’s website and their 3990 Guidance Document. 

  • Background Information:
    • Currently there is no evidence of widespread transmission of Covid-19 in the US, and therefore occupational transmission risk is considered low at this time. This situational appraisal could obviously change in the future.
  • Employers must track and record Covid-19 infections which occur in the workplace on OSHA 300 logs.
  • General Duty Clause/Hazard Recognition:
    • OSHA’s General Duty Clause requires “employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.”
      • Therefore employers who continue to operate during this pandemic must recognize Coronavirus as a potential hazard and take steps to control it.
    • In assessing Coronavirus related hazards, employers should focus on if and how their employees might come in direct contact with someone infected with Covid-19 or environments, materials, and surfaces contaminated with Coronavirus. Once these exposures are identified, employers should implement policies and procedures to eliminate or reduce risk of these exposures.
    • Occupational exposure risk increases as follows:
      • Business related travel abroad and/or to high infection areas
      • Business air travel in general
      • Gathering of large groups of employees in close proximity (< 6’). This includes in office areas as well as gathering employees for training, meetings, etc.
      • Industries where exposure opportunities are “part of the job” including: healthcare, deathcare, laboratories, airline operations, border protection and solid waste and wastewater management.
      • OSHA’s Guidance Document 3990 divides risk levels into 4 categories and makes specific control recommendations for each level.
  • Control and Prevention:
    • Controls can include a combination of engineering, administrative actions, safe work practices and PPE use:
      • Sample engineering controls:  Installing high efficiency air filters, increasing ventilation rates, installing barriers to isolate sick workers.
    • Focus on Basic Infection Prevention Measures: These include a mix of “administrative actions” and “safe work practices”:
      • Promote frequent hand washing for employees and visitors.  This includes providing facilities as well as hand sanitizer.
      • Require employees to stay home if sick
      • Promote “Respiratory Etiquette”: Cover your coughs and sneezes into your elbow
      • Discourage employees sharing work spaces
      • Provide tissues and sanitary waste containers
    • Create procedures to quickly identify employees with suspect symptoms and then segregate/isolate these employees and provide them with PPE to help prevent spread within your workforce, and to direct them to go home and then contact their personal physician via telephone (as opposed to going directly to a hospital or clinic).
    • Environmental Decontamination: Employers must consider and plan for how to manage potential workplace surface contamination (desktops, guardrails, keyboards, etc.) if employees test positive for Covid-19 while working.  Considerations include how to clean/decontaminate, who will execute (employees or contractors), and how to protect these workers from infection.
    • Employee Training: Employers must train workers on potential workplace coronavirus exposures and risks, relevant company specific policies and procedures, how to self report symptoms and isolate employees, how to use PPE, etc.
  • Relevant OSHA Standards:
    • Personal Protective Equipment Standard (“PPE”): Primary PPE options for Coronavirus protection include respiratory protection, face shields and gloves. OSHA REQUIRES THAT EMPLOYERS PROVIDE APPROPRIATE PPE AND TRAIN ON USE.
    • Bloodborne Pathogens: Even though Covid-19 isn’t thought to be spread by blood exposure, this standard contains relevant controls and guidance.
    • General Duty Clause: The General Duty Clause is a “catch-all” for all occupational health and safety hazards that aren’t included in OSHA’s laws & standards. It requires that employers assess their workplace to identify, control and mitigate any and all “recognized hazards.”  For some employers, as stated above, the potential exposure to coronavirus could be interpreted as a “recognized hazard.”

Beyond this general guidance, OSHA largely defers to CDC guidance (see below).

Potential OSHA related Risks & Liabilities not included in their Coronavirus content:

  • Be aware that OSHA could potentially utilize their “General Duty Clause” to take enforcement action against employers who fail to properly manage Coronavirus issues. Although I couldn’t find any specific language or reference as to how OSHA could deploy General Duty clause for this purpose, it’ definitely worth being aware of.
  • Potential criminal liability for business owners if an employee dies as a result of employer gross negligence by failing to follow OSHA and/or CDC coronavirus control guidance.
  • We believe that the risk for these liabilities is relatively low due to OSHA’s limited enforcement resources combined with the fact that the coronavirus threat is so new, massive and still largely unknown. But this risk is a strong reminder about the importance of researching and acting on available guidance and documenting your company’s policies and procedures whenever possible.

Summary of CDC Guidance For Businesses and Employers

In my opinion, CDC’s website provides much clearer and actionable guidance on how employers can take steps to manage and control the coronavirus crisis.

Here is a brief summary of CDC guidance:

  • Proactively encourage ill employees to stay home and away from work. This includes W2 and 1099 staff.
    • Symptomatic employees should stay home and recover and not return to work until all symptoms have ceased for at least 24 hours.
    • Maintain flexible and compliant policies to deal with sick leave, care for family members, etc.
  • Isolate sick employees.
    • Develop policies and procedures to quickly identify and isolate sick employees within your work environment prior to sending them home to contact their personal physicians.
  • Emphasize best hygiene practices to prevent coronavirus spread:
    • Posters and signage to illustrate best practices.
    • Routine hand washing
    • Don’t touch face
    • Use and availability of hand sanitizers, tissues and no touch disposal receptacles
  • Environmental decontamination and cleaning
    • Routinely clean common surfaces such as desks, countertops, door handles, etc.
    • Provide disposable wipes for cleaning.
    • NOTE: CDC guidance doesn’t include how to manage potential exposures for employees performing cleaning activities. Refer back to OSHA for this guidance.
  • Work related travel:
    • Don’t travel if you have symptoms
    • If symptoms appear while traveling, then immediately contact employer and physician
    • If company requires overseas travel, develop policies and procedures outlining how employees should seek treatment and manage symptoms while out of the country.
  • Plan for potential widespread Covid-19 outbreak:
    • Companies should begin planning for varying levels of outbreak severity.
    • CDC offers detailed planning guidance which we will not attempt to summarize here. We encourage employers to review and act on this guidance in the event that the coronavirus reaches severe levels resulting in long term, major business and economic disruption.

Potential Civil Liability Resulting From Coronavirus Issues

As if the Coronavirus itself isn’t enough to worry about, employers should also be aware of potential civil liabilities that could trigger in the event that workplace coronavirus exposures result in serious illness or fatalities within their workforce.

Although there’s not much talk about this subject at this time, it’s certainly plausible to anticipate civil actions to be taken against negligent employers who fail to take reasonable actions, as described above, to prevent exposure and protect their employees from Covid-19 infection.  This unfortunate risk will likely appear in the aftermath of this crisis which is yet another reason to take OSHA and CDC guidance seriously and act accordingly.

Relevant OSHA and CDC links provided below:

https://www.osha.gov/SLTC/covid-19/

https://www.osha.gov/Publications/OSHA3990.pdf

https://www.cdc.gov/coronavirus/2019-ncov/index.html

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

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