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Preparing for a Federal OSHA COVID-19 Standard

Posted on 2/12/2021 by Roger Marks

In a recent Executive Order titled “Protecting Worker Health and Safety”, the President of the United States directed OSHA to consider promulgating emergency worker protections to address the risk of COVID-19 transmission in the workplace.

If OSHA determines that new regulations are needed, they must issue them by March 15, 2021.
Today we ask: If OSHA does create a COVID-19 health and safety Standard, what might it look like?

The agency won’t necessarily be starting from scratch: Existing state requirements, a defunct rulemaking effort, existing OSHA guidance, and the agency’s enforcement priorities all provide clues about what a Federal COVID-19 Standard might include.

Existing State COVID-19 Rules

State safety regulators in Virginia and Oregon have created permanent COVID-19 standards already.

In Virginia, these rules took effect on January 27.

In Oregon, a permanent standard was recently proposed and, if finalized, will take effect on May 4.

Both state rules address (at a minimum):
  • Workplace risk assessment to identify jobs that could expose employees to SARS-CoV-2
  • Use of administrative and engineering controls to prevent transmission 
  • Employee training, notification, and information requirements
  • Rules for respiratory protection, face coverings, and PPE
  • Physical distancing and hygiene requirements
  • Employee transportation to or from work
  • Cleaning and disinfecting the workplace
  • When and how formerly COVID-19 positive employees can return to work 
Safety professionals can reasonably expect that a Federal COVID-19 Standard, if one is created, to follow a similar outline.

To help employers satisfy state or Federal COVID-19 employee training and information mandates, Lion launched the COVID-19 Employee Safety Awareness online course.

Lion tracks COVID-19 guidance and rulemakings on a state-by-state basis here.

The OSHA Infectious Disease Rule that Almost Was

Years ago, OSHA started preliminary work on an Infectious Disease standard that is relevant to COVID-19. A planned rule was featured in the Fall 2016 Unified Agenda and named diseases like tuberculosis, chickenpox, shingles, measles, SARS, MRSA, and pandemic influenza. 

In a summary of the rulemaking-in-progress, OSHA made note of industries where controls to protect workers from infectious disease, including healthcare, emergency response, jails and prisons, homeless shelters, drug treatment programs, laboratories, coroners’ offices, pathologists, medical examiners, and mortuaries.  

While a Notice of Proposed Rulemaking was tentatively scheduled for October 2017, a proposal never materialized. The rulemaking was left off subsequent regulatory agendas.
In Fall 2016, OSHA described the nascent infectious diseases standard as follows:

“OSHA is developing a standard to ensure that employers establish a comprehensive infection control program and control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease. “

Given that COVID-19 is an infectious disease like SARS or influenza, OSHA very well re-animate this dormant rulemaking effort to inform the new Standard, if the agency decides one is needed.  

Existing OSHA Guidance

While OSHA has not issued new regulations concerning COVID-19, and may not ever do so, the agency has released extensive guidance for employers since the public health emergency started. OSHA has issued general guidance for all employers, as well as more specific recommendations for dozens of workplace types, including:
  • Agriculture
  • Construction
  • Manufacturing
  • Meat and poultry processing
  • Package delivery
  • Seafood processing
  • Stockrooms and loading docks
More information about industry-specific COVID-19 guidance.  

Following the change in administration in early 2021, OSHA issued new COVID-19 guidance for all employers on January 29.

OSHA COVID-19 Enforcement So Far

As of mid-January 2021, OSHA had cited hundreds of employers for COVID-19-related health and safety violations. Total civil penalties assessed recently passed the $4 million mark.
So far, enforcement has focused largely on four key OSHA Standards:
  • Illness reporting and recordkeeping (29 CFR 1904)
  • Respiratory protection (29 CFR 1910.134)
  • Bloodborne pathogens (29 CFR 1910.1030)
  • Personal protective equipment (29 CFR 1910.132)
A Federal COVID-19 health and safety Standard would likely reinforce key requirements in these existing standards to protect workers from the virus and ensure proper reporting of workplace illness.

To dig deeper into OSHA’s COVID-19 enforcement efforts, see our recently updated report: COVID-19 Enforcement By-the-Numbers  

We don’t know yet whether OSHA will proceed with an emergency COVID-19 standard. If they do create one, the existing state rules, guidance, and enforcement priorities provide a strong starting point.

Regardless of what action OSHA takes in the next month, employers must take steps to protect workers from exposure. The OSH Act General Duty Clause requires employers to address all health and safety hazards in the workplace, including infectious diseases.
Lion News continues to track COVID-19 safety regulations and guidance from Federal and state agencies in our COVID-19 EHS News Hub.  

Tags: COVID-19, OSHA compliance, workplace safety

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