Do employers have obligations under OSHA with respect to COVID-19 safety?

Employers are subject to OSHA requirements related to COVID-19 safety in a few ways. Non-healthcare employers still have to comply with the General Duty Clause by performing job hazards assessments relating to COVID-19 exposures and protecting employees from those hazards including, but not limited to, providing personal protective equipment and contact tracing.

Healthcare employers have additional obligations. OSHA has proposed a Permanent Healthcare COVID-19 Regulation, which mirrors the June 2021 Healthcare Emergency Temporary Standard. The proposed permanent standard requires healthcare employers to have a COVID-19 workplace safety plan that:

• Is in writing
• Identifies a COVID-19 safety coordinator to implement and monitor the plan and who is knowledgeable in infection control principles and practices as they apply to workplace and employee job operations
• Discusses a workplace hazard assessment
• Discusses how to obtain vaccine status of employees
• Seeks input and involvement of non-managerial employees and union representatives
• Is monitored for each workplace to ensure the ongoing effectiveness of the plan and is updated as needed
• Addresses all hazards identified in hazard assessment and has specific policies to minimize those hazards; and
• Discusses how the employer will effectively communicate and coordinate with other employers, including all employers at multi-employer worksites

Even if the proposed healthcare regulation does not actually become a permanent standard, OSHA may enforce CDC guidance and other directives for healthcare employers under OSHA’s General Duty Clause.

During COVID, we have seen employers across all industries issued citations for a wide range of requirements, including: reporting, recordkeeping on OSHA 300 logs, fit testing and medical evaluations for respirators under the respiratory protection regulation, and general duty violations where employees fail to wear face coverings or PPE as required, or employers fail to contact trace to identify potentially exposed employees. Employers should note they may be able to make an argument of “infeasibility” or raise other defenses with respect to these requirements, so employers should be prepared to challenge these citations as appropriate.