Re-Opening States and Businesses and the Role OSHA May Play

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As a handful of states declare their intentions to lift stay-at-home orders and allow some or all businesses to re-open, the federal government has largely taken a hands-off approach, citing federalism and a deference to governors who better understand the threat of COVID-19 in their respective states. While President Trump and his medical experts have warned that re-opening for business is ill-advised, some states seem determined to ignore the warnings and do just that.  Yet, even if states allow businesses to re-open, state government lacks the power of course to force individual businesses to open, employees to go to work or the public to patronize open businesses. These are all difficult personal decisions, balancing economic needs and the perceived threat to one’s personal health and the health of others. One factor that has not received much attention but that could impact the economic component of the equation, not to mention the role of the federal government in state and business owner decisions, is the potential for OSHA to get involved if it feels that employers who elect to conduct business are failing to adequately protect employees. The idea is hardly far-fetched, as OSHA has already published influenza pandemic guidelines. This article will review those guidelines, how they could be modified to apply to the COVID-19 pandemic and the potential impact OSHA might have on business owner decisions whether to re-open for business during an ongoing pandemic. 

OSHA has rather broad standard-making authority, and even in the absence of formal standards, often issues guidelines for employers to follow to promote workplace safety. While OSHA guidelines alone lack the effect of law, they can be modified into regulations or indirectly enforced as standards against employers who egregiously ignore the guidelines through OSHA’s general duty standard. The general duty standard allows OSHA to cite an employer for failing to adequately protect its employees in the absence of a more specific standard to cite for the violation.[1] Of course, OSHA may also develop new regulations, either through permanent standards or, where circumstances warrant, temporary emergency standards. As one might expect, the process for promulgating temporary emergency standards is more expeditious than that for permanent standards, but the circumstances under which OSHA can implement emergency standards are more limited. COVID-19 presents a unique scenario, however, that might justify a temporary emergency standard. 

OSHA could develop a COVID-19 pandemic standard on its own initiative or in response to a petition from a variety of organizations and individuals, including the Secretary of Health and Human Services, the National Institute for Occupational Safety and Health (NIOSH) and state and local governments.[2] Once OSHA prepares a proposed standard, it generally publishes the standard in the Federal Register as a proposed rule and invites discussion and requests for hearings from potentially affected parties for a specified period of time, after which OSHA decides whether to publish the standard as is, modified, or not to adopt the standard.[3] If OSHA decides that an existing risk places workers in grave danger due to exposure to toxic agents or new hazards, OSHA may issue emergency temporary standards to address the risk.[4] When it does so, OSHA publishes the emergency temporary standard in the Federal Register, and the standard then has the effect of a permanent standard while it undergoes the usual procedure for consideration of a permanent standard.[5] Final rulings on emergency temporary standards are generally made within six months and are subject to review by the United States Courts of Appeals.[6]

One can easily imagine OSHA issuing an emergency temporary standard related to COVID-19, particularly as individual states begin allowing businesses to re-open and as more reports are publicized of already-operating essential business forcing employees to work in the face of COVID-19 breakouts at their facilities. Of course, states also have their own versions of OSHA, but if OSHA does decide to issue standards addressing COVID-19, any state standards would need to provide as much protection or more than that provided by the federal standards. Employers may seek variances to OSHA standards, but whether OSHA would be willing to grant a variance during an ongoing pandemic is doubtful.

If OSHA does decide to issue a COVID-19 standard, its existing guidelines for influenza pandemics provide a roadmap for how the standard might read. The OSHA Guidance on Preparing Workplaces for an Influenza Pandemic classifies workplaces into four different categories and identifies steps that every employer should take.[7] These categories are lower risk, medium risk, high risk, and very high risk. The main focus of the OSHA guidelines is to protect employees and customers and is accomplished through action items applicable to every employer and additional steps based upon the business’ associated risk of exposure.[8] The amount of preparedness and steps for mitigating exposure increases as the employer’s interaction with the public increases.

The purpose of the guidelines for all employers, no matter level of risk, is to promote proper hygiene and social distancing.[9] Proper hygiene includes frequent hand washing, particularly during and after contact with common areas and items. Social distancing involves keeping employees at least six feet apart and avoiding employee gatherings, such as meetings. OSHA further recommends encouraging sick employees to stay at home, encouraging proper cough etiquette using a tissue or upper sleeve, and providing customers with tissues, touchless trash receptacles and disinfectant. The guidelines also recommend keeping work surfaces, such as computers, phones and other frequently touched office equipment, sanitized.[10]

The level of precaution increases as an employee’s exposure to the potentially sick increases. OSHA uses an Occupational Risk Pyramid for Pandemic Influenza.[11] At the bottom of the pyramid is the lower risk group for those who have minimal contact with the public, such as office workers. Social distancing and proper hand hygiene are recommended as well as communication about work from home opportunities, leave policies, and a consolidated means of communication. The medium risk group includes schools, retail, and high-density workers. In addition to the guidance for all employers and for lower risk employers, the medium risk group should implement more permanent controls, including drive-through windows, delivery options, and installing plastic sneeze guards in places where employees interact with customers and the public. OSHA also recommends that employees in the medium risk group receive personal protective equipment (PPE). Appropriate PPE for this type of work exposure is a surgical mask to prevent sprays of potentially infected liquid droplets from talking, coughing or sneezing. High and very high-risk workplaces include those involved with the health care industry. For these categories of employers, OSHA recommends enhanced safety measures including N95 or higher-grade respirators, face shields, disposable gowns, gloves, and eye protection as well as training to effectively use PPE.[12]

The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970 potentially comes into play when:

  1. The employer fails to keep the workplace free of a hazard to which its employees were exposed;
  2. The hazard is recognized;
  3. The hazard is causing or is likely to cause death or serious physical harm;
  4. A feasible and useful method to correct the hazard is available.[13]

To be cited by OSHA under the General Duty Clause, an employer must fail this four-part test. The fourth element may prove challenging both from a satisfaction and enforcement standpoint.  Employers will undoubtedly face challenges attempting to secure appropriate PPE, given the lack of its availability during the pandemic. To the extent adequate PPE is available, it has rightly been prioritized for companies and employers classified as high risk and very high risk. Low risk and medium risk employers may need to resort to other measures to protect their employees, where feasible, including face masks, gloves and working from home options. 

OSHA’s enforcement of the pandemic guidelines (modified to apply specifically to COVID-19) either by enacting a specific emergency standard or through the general duty clause has some precedent. In a 1991 letter regarding safety standards surrounding psittacosis, a bacterial infection communicable by animals to humans, OSHA stated that, “[w]hile OSHA does not have a standard specific to the hazard of psittacosis, the Agency my apply Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (OSH Act) to hazards not covered by a specific standard.”[14] The letter further articulated that proper ventilation and PPE might be required, and a lack of feasible abatement could result in a violation of the General Duty Clause.

Employers considering re-opening their businesses before the resolution of the current wave of the COVID-19 pandemic should be forward-thinking and, at a minimum, anticipate that OSHA’s influenza pandemic guidelines may be re-written to apply to COVID-19, that an emergency standard may be enacted, or that OSHA may apply the General Duty clause to protect employee safety.  Of course, compliance presents financial and logistical hurdles that employers, many of which may already be cash-strapped from being closed for several weeks, may not be able to take on right away. In addition to considerations employers will need to make about the general costs of doing business at a time when customers and clients may not yet be comfortable with frequenting businesses, employers will need to weigh whether they can adequately protect their employees and avoid potential scrutiny and fines from OSHA.

[1] 29 U.S.C.A. § 654(a)(1).

[2] OSHA Standards Development, U.S. Dep’t of Labor, Occupational Safety and Health Admin. available at www.osha.gov/OCIS/stand_dev.html.

[3] 29 U.S.C.A. § 655 (b).

[4] 29 U.S.C.A. § 655 (c)(1).

[5] 29 U.S.C.A. §§ 655 (c)(2)-(c)(3).

[6] 29 U.S.C.A. § 655 (c)(3).

[7] Occupational Safety & Health Admin, Guidance on Preparing Workplaces for an Influenza Pandemic (2009).

[8] Id.

[9] Id.

[10] Id.

[11] Occupational Safety & Health Admin, Guidance on Preparing Workplaces for an Influenza Pandemic (2009).

[12] Id.

[13] OSH Act of 1970 § 5, 29 USC 654 (2004).

[14] OSHA Standard Interpretations, Occupational Exposure to Psittacosis and OSHA’s Enforcement Activity to Protect Exposed Employees (1991).

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