OSHA Covid-19 Update
By Susen Trail | 06/05/2020
Prior to understanding that bacteria and viruses from contaminated material and hands transmitted disease doctors seldom washed their hands. As a result each patient treated was exposed to every disease the doctor had seen earlier in the day. OSHA and Safety and Health professionals, essential service providers, are very aware of this history.
During inspections Compliance Officers interact with a large cross section of a business’ employees. This creates an increased probability of exposure and becoming a source of exposure. Therefore, on-site inspections have been reduced from 217/day prior to the COVID-19 quarantine to 60/day, on average.
OSHA’s current strategy in COVID-19 complaint response is detailed in a May 19, 2020 Enforcement Memo that prioritizes OSHA’s resources and contains two levels of response based on the current number of disease cases in the region.
The only infectious disease standard OSHA has is Bloodborne Pathogens, 1910.1030, and COVID-19 can be transmitted via other bodily fluids. In 1970 the House Committee on Education and Labor stated the clause enables OSHA “to provide for the protection of employees who are working under such unique circumstances that no standard has yet been enacted to cover this situation.”
Department of Labor Secretary, Eugene Scalia, has stated that the “general duty clause,” is “applicable” to COVID-19 and that OSHA will “use it as appropriate” to protect employee health. This clause requires businesses to maintain “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.”
As of May 26, 2020, OSHA has received 4,395 COVID-19 related complaints:
- 605 were referred, most likely to a more appropriate department
- 3,398 have been closed based on “good faith efforts”
- If the employer employed good faith efforts, see item 3, below.
- 324 were investigated by sending a Compliance Officer on-site,
- All of the other investigations were conducted by phone, video conferencing, and other electronic tools
On March 15th the House of Representatives’ passed their own corona virus bill calls for a more aggressive federal enforcement of workplace safety. This bill calls for an Emergency Temporary Standard to be developed and enforced within 7 days after the bill is passed and a permanent standard to be developed within 2 years after the bill is passed. In order for this to happen the available data must meet the criteria of 6(c) of the OSHA Act.
Emergency Temporary Standards, ETS, take effect immediately and remain in effect until a permanent standard replaces it. If OSHA determines the employee is exposed to “substances or agents” that are sufficiently toxic or physically harmful adverse health effects, then the requirement to create an ETS has been met.
An example of a similar situation, though with a much more dire outcome occurred in 1986 when Unions called for an Emergency Temporary Standard for the 100% fatal disease Human Immunodeficiency Virus, or HIV. The petition was denied because it did not meet the criteria in 6(c), even though there were documented cases of transmission of the, at that time, fatal disease from patients to health care workers in most of the states.
It seems highly unlikely COVID-19 will meet the criteria for 6(c) because:
- The number of new cases in the United States steadily trending downwards over the last four weeks.
- The number of fatal cases at its lowest point on May 25, 2020.
- The fatality rate still cannot be correctly calculated due to the missing number of mild and asymptomatic cases
- Even with the missing data the fatality rate globally is approximately 6% and nationally between 7 and 1%.
Prior to calls for “aggressive enforcement” from the House OSHA has taken a very reasonable, flexible, and supportive position in this health emergency.
- They have taken steps to reduce their own potential for spreading the disease.
- They have recognized the challenges facing employers and their efforts to do the best they can to protect their essential employees.
- While there is no specific standard for infectious diseases OSHA’s CPL to their compliance Officers makes it clear which standards apply to controlling employee exposures:
- 4/10/2020 Recordkeeping Enforcement Guidance
- 4/13/2020 related standards
- 1910.1904 Recordkeeping
- 1910.132 PPE
- 1910.134 Respiratory Prot.
- 1910.141 Sanitation
- 1910.145 Signage
- 1910.1020 Access to Med. And Exposure Records
- Section 5(a)(1) General Duty Clause
- 5/26/2020 Updated Coronavirus Enforcement Response Plan
- They have provided a lot of resources for employers to use to protect their employees. This page is updated as new controls or disease information becomes available.
More information on how OSHA develops standards can be found here.