As the number of COVID-19 coronavirus cases continues to grow in the United States, employers should be aware of their legal obligations under the Occupational Safety and Health Act of 1970 (“OSH Act”). Employers that fail to comply with OSHA’s guidance and the CDC’s recommendations will be at a higher risk of General Duty Clause citations if an employee experiences a COVID-19 work-related infection.
Reasonable Safety Measures
No specific federal law imposes an obligation on employers to enact policies prohibiting workplace exposure to COVID-19. However, the General Duty Clause of the OSH Act does require 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.”
OSHA expects employers to take reasonable measures to protect workers from workplace exposure to COVID-19. These measures include taking reasonable hygiene and sanitation measures and taking sensible precautions in the event someone has been exposed.
General Duty Clause Citations
Before OSHA can issue a General Duty Clause citation, a number of conditions must be satisfied:
- There must be a hazard
- The hazard must be recognized
- The hazard causes or is likely to cause serious harm or death
- The hazard must be correctable
At this stage of the COVID-19 pandemic, there is clearly a recognized hazard that can cause serious harm or death. While the hazard is not completely correctable, there are clear steps recognized by OSHA and the CDC that can make the workplace safer.
Guidance on Lowering Workplace Exposure Risk
OSHA’s “Guidance on Preparing Workplaces for COVID-19” (pdf) makes several recommendations that should be taken immediately by employers to mitigate the risk of worker exposure to COVID-19, as explained in a previous client alert: OSHA Issues Guidance On Preparing Workplaces For COVID-19.
While this guidance does not have the legal effect of an actual OSHA regulation, employers that fail to comply are at a higher risk of receiving a General Duty Clause citation for failing to maintain a safe and healthy workplace.
OSHA also recommends consulting the CDC’s guidance, which encourages employers to be flexible and to involve employees in developing and reviewing their plans. Businesses are strongly encouraged to coordinate with state and local health officials so timely and accurate information can guide appropriate responses.
While workers in some industries – especially healthcare – are at greater risk of COVID-19 exposure than others, there is some risk to workers across all industries due to the growing community spread. While the OSHA and CDC guidance documents do not have regulatory weight, they do provide reasonable methods to correct, eliminate, or at least materially reduce COVID-19 exposure hazards in most workplaces.