Opinions and Legal Insights

HOW DOES THE COLLISION OF THE COVID-19 PANDEMIC WITH WORKPLACES POSE SAFETY ISSUES FOR EMPLOYERS?

The Occupational Safety and Health Act (“OSH Act”), requires employers to satisfy the safety and health standards and regulations issued and enforced either by the Occupational Safety and Health Administration (“OSHA”) or by an OSHA-approved State Plan. In addition, the OSH Act’s General Duty Clause, https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=3359&p_table=OSHACT, obliges employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. OSHA-approved State Plans may have standards, regulations and enforcement policies that differ from OSHA’s, but they must achieve results at least as effective as OSHA’s. (To see which states have such State Plans click here:  https://www.osha.gov/stateplans).

OSHA has issued guidance to help employers to determine their workplace safety obligations in view of the coronavirus pandemic. (Click here: https://www.osha.gov/Publications/OSHA3990.pdf). It includes a recommendation for every employer to establish an infectious disease preparedness and response plan to address the issues specific to their workplaces that the COVID-19 pandemic poses. OSHA’s guidance further provides employers with a roadmap from which they can develop their own plans. To help employers determine appropriate precautions, OSHA has divided job tasks into four risk exposure levels:

1. Very high exposure risk jobs concern those with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures. Workers in this category include: (1) Health care workers (such as, doctors, nurses, dentists, paramedics, emergency medical technicians) performing aerosol-generating procedures (for example, intubation, cough induction procedures, bronchoscopies, some dental procedures and exams, or invasive specimen collection) on known or suspected coronavirus patients, (2) health care or laboratory personnel collecting or handling specimens from known or suspected COVID-19 patients (for instance, manipulating cultures from known or suspected coronavirus patients), and (3) morgue workers performing autopsies, which generally involve aerosol-generating procedures, on the bodies of people who had or were suspected of having coronavirus when they died. 

2. High exposure risk jobs have high potential for exposure to known or suspected sources of COVID-19.  Employees in the following categories perform high exposure risk jobs: (a) healthcare delivery and support staff (such as, doctors, nurses, and other hospital staff who must enter patient rooms) exposed to known or suspected COVID-19 patients, (b) medical transport workers (for example, ambulance vehicle drivers and emergency medical technicians) moving known or suspected COVID-19 patients in enclosed vehicles, (c) mortuary workers involved in embalming or cremating the bodies of persons known or suspected of having coronavirus when they died.

3. Medium exposure risk include those jobs that require either frequent or close contact (within six feet or less), or both, with people who may be infected with coronavirus, but who are not known or suspected COVID-19 patients. Two categories of workers generally have medium exposure risks—those that work with travelers returning from areas with widespread COVID-19 transmission, such as workers in the airline, rail, and ground transportation industries, and those whose jobs cause them to interact directly with the public in areas with widespread community transmission of the coronavirus, such those employed in retail businesses or schools.

4. Lower exposure risk jobs lack both contact with people known to be, or suspected of being, infected with the coronavirus and frequent close proximity to the general public—namely within six feet or less. Workers in this category have minimal occupational contact with the public and other coworkers.

Employers
Should Implement Basic Infection Prevention Measures in Their Workplaces

For most employers, the vast majority or all of their employees hold lower exposure risk jobs. To protect them, employers must emphasize basic infection prevention measures. As appropriate, employers should implement good hygiene and infection control practices, such as:

A. Promoting frequent and thorough hand washing with either soap and water or alcohol based hand rubs consisting of at least 60% alcohol;

B. Instructing workers to stay home if they are sick;

C. Encouraging coughing or sneezing into tissues or covering the individuals’ mouth with her or his upper sleeve;

D. Providing customers and the public with tissues and trash receptacles;

E. Using flexible worksites (such as, telecommuting) and flexible work hours (for instance, staggered shifts), to increase the physical distance among employees and between employees;­

F. Discouraging workers from using other employees’ phones, desks, offices, or other work tools and equipment, when possible; and

G. Maintaining regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment;

If employers use either cleaning products other than
household cleaners or household cleaning products with more frequency than an
employee would use them at home, they must also train their cleaning crew regarding
the hazards of any cleaning chemicals in use in the workplace.  Employers must also maintain a written
program in accordance with OSHA’s Hazard Communication standard (29 C.F.R.
1910.1200). In addition, they must download the manufacturer’s Safety Data
Sheet (“SDS”) and share the SDS with all employees exposed to the cleaning
products.  Employers must further include
the chemicals contained in the cleaning products and disinfectants in use in
their workplaces on their list of workplace chemicals as part of their Hazard
Communication Program.  (Most employers
already have such a program and those that do not most likely need to establish
one).

Employers, furthermore, must provide the necessary personal protective equipment (“PPE”) to members of their cleaning crew. Typically, such staff must wear disposable gloves and gowns for all tasks in the cleaning process, including trash handling.  The gloves and gowns must provide effective protection to the workers in view of the cleaning and disinfecting products in use.  If cleaning crew members risk splashes from either cleaning or disinfecting agents, then they may need to wear additional PPE, such as either goggles or a face mask.  Typically, manufacturer’s instructions on a product include recommendations for the protective measures cleaning crew members should follow when using the manufacturer’s products.  Employers should require cleaning staff to follow the manufacturer’s recommendations as to the necessary PPE for staff members need to wear. At the end of their shift, cleaning crew members must remove their disposable gloves and gowns carefully to avoid contamination of themselves, other crew members, and the surrounding area. After they have removed their PPE, cleaning crew members must wash their hands thoroughly for at least 20 seconds.

Employers should develop policies for worker protection
and provide training to all cleaning staff on site before assigning staff
members to do cleaning tasks. Training should include which PPE employees must
wear, when they must wear PPE, how to put PPE on correctly, how to remove PPE
to avoid cross-contamination, and how to dispose of PPE properly.

 What Right Do Employees Have to
Refuse to Work Because of Coronavirus Fears?  

The OSH Act allows employees who reasonably believe that the performance of their job duties puts them in imminent danger to refuse to work.  The statute defines “imminent danger” as workplace conditions or practices that reasonably create a an immediate danger that they will cause death or serious physical harm before OSH Act enforcement actions can eliminate the danger’s immediacy.

OSHA has explained that imminent workplace dangers must
threaten either death or physical harm. 
In the agency’s view such physical harm must resemble the harm caused by
toxic substances or other health hazards that will shorten life or
substantially reduce physical or mental efficiency from being exposed to
them. 

To justify an employee’s refusal to work, she or he must face an immediate or imminent threat.  The employee must reasonably believe that her or his complaining to OSHA and its investigating that complaint while the employee continued to work would put the employee at risk of suffer death or serious physical harm within a short time. In the context of the coronavirus pandemic, an employee required to travel to any of the countries that the Centers for Disease Control and Prevention (“CDC”)  has classified in Level 3,  https://www.cdc.gov/coronavirus/2019-ncov/travelers/map-and-travel-notices.html, would likely expose her or him to an imminent risk of death or serious physical harm.  Similarly, an employer’s assignment of workers to care for patients in a medical setting without personal protective equipment would likely meet this threshold.   For the most part, however, typical workplaces in the United States expose workers to OSHA’s level four, lower exposure risks, and do not justify an employee’s refusal to work. As with all general principles, employers must implement them with the utmost care. In any instance in which an employee refuses to work and explains her or his refusal on the basis of fears as to whether working conditions subject him to an imminent risk of death or serious physical injury for coronavirus related reasons, the employer must confirm that no extenuating circumstances override the general principle.  Many employers faced with such a refusal to work would send the employee home without imposing any discipline despite their disagreement with the employee’s reasons for her or his refusal to work.  Employers that take that approach understand that if the employee challenges either the termination of employment or other discipline in such a situation, a judge or jury would likely have sympathy for the employee and allow her or him leeway even if the employer acted within its rights.

Who
Decides Whether an Employee Wears a Mask While Working?

Generally, the employer determines whether employees need to wear personal protective equipment (“PPE”), such as masks.  Certainly, employers exercise that right in view of OSHA’s standards, which may require the use of masks or other PPE depending on the circumstances.  Presume that no OSHA standard requires a worker to wear a mask under normal circumstances to do her job duties in an exposure level  four job, such as office work or warehouse work in a non-retail environment.   As expected, the employer provides no masks to such workers. 

What right does an employee have to insist that she will work only if the employer allows her to wear a mask? 

The OSHA standard regarding respirators governs this situation.  29 C.F.R. 1910.134(a)(2), https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=12716&p_table=STANDARDS.  Employers must provide respirators to employees when the circumstances require them to protect the employees’ health.  In these circumstances, the employer lacks any duty under OSHA’s standards to provide a mask to the employee who refuses to work without one. 

What if the employee asks the employer to allow her to wear a surgical mask that she provides voluntarily? 

OSHA’s regulations allow employers to permit employees to bring their own respirators into the workplace if their doing so creates no hazard.  The regulations further state that if an employer allows an employee to use her own respirator voluntarily, it must provide such a worker with a copy of Appendix D to Section 1910.134 (Mandatory) Information for Employees Using Respirators When Not Required under the Standard.  https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.134AppD. Such an employer must also implement a written respiratory protection program if any employee voluntarily using a respirator uses a device other than a surgical or dust mask, such as devices with fitted face pieces or goggles. The respiratory protection program must include the employer’s assuring the proper fitting of any respirator with fitted face pieces or goggles. The program must also address the proper cleaning, storing, and maintaining of respirators to prevent their posing a health hazard to the user.  In most instances, employees working in exposure level 1 jobs will ask to wear a surgical or dust mask type respirator, so employers would assume no responsibility to establish and implement a written respiratory protection program by allowing the employee to wear such a mask.  As a practical matter, most, if not all, employers will give such an employee their permission to wear a mask to relieve the employee’s anxiety at no cost to the employer.   

If the employer refuses to allow the employee to wear a surgical mask that she provides voluntarily, can the employee lawfully refuse to work?   

As discussed above, OSHA recognizes an employee’s right to refuse to work because of unsafe or unhealthy conditions in the workplace in some instances.  In a situation where an employee performs a job with level four exposure to the corona virus, lower exposure risk, she likely lacks the necessary immediate danger of her suffering death or serious injury if her employer denies her request to wear a surgical mask that she provides voluntarily.  Even if she subjectively believes that she faces such a danger, a reasonable person would likely reach a contrary conclusion.  Thus, the employer has the right to deny the employee’s request to wear her own surgical mask while working.  If the employee then refuses to work, the employer has the right to send the employee home, to discipline her, or to terminate the employee’s employment lawfully. Given the prevailing anxiety about COVID-19 infections among people generally, many employer would decide to forgo a loss of the worker’s production and to allow her to wear her own surgical mask.  Such an approach lessens the chance of the employer experiencing a public relations disaster after it fires the worker for trying to protect herself and her family from the coronavirus at no cost to the employer.   

The coronavirus pandemic raises a number of workplace safety issues for all employers. The lack of experience that most employers have with these issues under the OSH Act makes them susceptible to unintended missteps. Employers making decisions about coronavirus related workplace health and safety issues should discuss them in advance with their labor and employment law counsel for specific legal advice.  For more information about the COVID-19 related workplace health and safety issues, please contact Gerry Richardson, (314) 552-0453, grichardson@evans-dixon.com. The next Blog for Business Law COVID-19 post will address issues relating to mass layoffs, facility closings, and other traditional labor law issues.