With a new administration on the horizon, it seems likely OSHA may revisit whether it will issue emergency COVID-19 regulations, something Secretary of Labor Scalia has repeatedly stated is not necessary despite heavy criticism by worker advocate groups. Indeed, many states have or will be implementing such emergency regulations such as Virginia, California, Oregon, and Michigan. Currently, OSHA relies on the general duty clause to ensure employers are taking necessary measures to protect employees from COVID-19 in the workplace. However, OSHA has made clear that other existing standards may be applicable in COVID-19 related investigations. Recently, OSHA published a list of the most frequently cited standards in COVID-19 investigations which can be found here.
Given the spike in COVID infections across various parts of the country and the increased number of whistleblower complaints, it would be prudent for businesses to review the list to help ensure their own compliance in these areas, if applicable.
The most frequently cited standards generally include:
- Providing a medical evaluation before a worker is fit-tested or uses a respirator
- Performing an appropriate fit test for workers using tight-fitting respirators
- Accessing the workplace to determine if COVID-19 hazards are present or likely to be present would then require the use of a respirator or other PPE
- Implementing a written respiratory protection program
- Providing appropriate respirators and/or other PPE
- Training workers to use respirators and/or other PPE
- Properly storing respirators and/or other PPE
- Reporting fatalities and/or hospitalizations of a work-related incident
- Keep required records of work-related injuries/illnesses, e.g., OSHA logs
As a reminder, OSHA continues to take the position that cloth face coverings are not considered PPE and thus, employers are not required to provide them to employees although OSHA recommends that employers encourage workers to wear face coverings at work as does the CDC.
Although the recent good news about COVID-19 vaccines could potentially affect the need for emergency COVID-19 regulations, employers should certainly prepare for more aggressive OSHA enforcement efforts under a Biden Administration.
