How OSHA Protects Worker’s Rights In The COVID Pandemic

OSHA regulations provide workers with many rights related to the COVID pandemic. 

Decimation was used as a form of discipline in the Roman Army. If a group of soldiers was deemed to have committed a crime or was considered to “rebellious,” the group would be randomly divided into ten sections and commanders would order execution of all men in a random section as a “lesson” to the others. COVID-19 isn’t quite that lethal, but some employer’s actions related to the COVID pandemic may figuratively decimate our country in other ways.

Most employers are doing their best to respect the rights and health of their employees while dealing with this unprecedented crisis. Unfortunately, a subset of less ethical employers are figuratively “decimating” their employees. For example, there are reports of healthcare providers being instructed not to wear masks all the time on the recommendations of infectious disease specialists in their hospitals. This demand is in direct conflict with recommendations on protective equipment use from the American College of Emergency Physicians.
One report on a widely-read medical blog stated that hospital administrators were disciplining physicians who wear masks too often because it “was scaring the patients.” I have been personally approached by workers at large companies who are denied sick leave, denied reasonable “social distancing,” and denied personal protective equipment. In one case, a manager at the largest online retailer in the country had symptoms highly suggestive of COVID-19 infection including fever to 103 degrees, coughing, trouble breathing and loss of taste and smell. Strep and influenza testing was negative. He was refused sick leave under the threat of termination unless he had a “documented positive” coronavirus test. The problem is that coronavirus testing is generally not being performed on non-hospitalized patients. He was able to find an outpatient coronavirus testing facility and did receive coronavirus testing, but those results will not be returned for 7-10 days due to “high volumes.” In the interim, at the threat of job loss, the worker was forced to return to work in close contact with co-workers and without protective equipment. He will absolutely spread the disease to many of his co-workers and those co-workers will, in turn, spread the disease to their families. Many co-workers have now developed symptoms. By the time his coronavirus test is returned positive, any attempts at isolation will be useless.
The legal definition of “intent” is a state of mind in which an actor knows an event will occur or knows that an event is substantially likely to occur due to the actor’s action or inaction. Under this definition, one could argue that the employer who refuses to adhere to federal and medical guidelines is intentionally spreading this disease to employees. Intent also happens to be one element of criminal charges.

OSHA Standards Relating to Healthcare

As a division of the US Department of Labor, the Occupational Safety and Health Administration (OSHA) was created in 1970 to create and enforce workplace safety standards.
According to OSHA’s COVID web page, even during the pandemic, employers are still required to follow applicable OSHA requirements, including standards regarding Bloodborne Pathogens (29 CFR 1910.1030), Personal Protective Equipment (29 CFR 1910.132), and Respiratory Protection (29 CFR 1910.134). This page also states that “healthcare workers must use proper PPE when exposed to a patient with confirmed/suspected COVID-19 or other sources of COVID-19. CDC and OSHA recommend that healthcare workers wear: Gowns, Gloves, NIOSH certified disposable N95 or better respirators, eye/face protection (e.g., goggles, face shield).”

OSHA’s Standards For Personal Protective Equipment

OSHA PPE standards can be found at this link: https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.132

Some pertinent PPE standards include the following:

• 1910.132(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary [for exposures] capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
• 1910.132(b) Employee-owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.
• 1910.132(h)(1) Except as provided by paragraphs (h)(2) through (h)(6) of this section, the protective equipment, including personal protective equipment (PPE), used to comply with this part, shall be provided by the employer at no cost to employees.

OSHA’s Standards For Respiratory Protection

OSHA standards for respiratory protection can be found at this link: https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.134

Some pertinent OSHA respiratory standards include the following:

• 1910.134(a)(2). A respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee. The employer shall provide the respirators which are applicable and suitable for the purpose intended.
• 1910.134(c)(1) In any workplace where respirators are necessary to protect the health of the employee or whenever respirators are required by the employer, the employer shall establish and implement a written respiratory protection program with worksite-specific procedures.
• 1910.134(f) Fit testing. This paragraph requires that, before an employee may be required to use any respirator with a negative or positive pressure tight-fitting facepiece, the employee must be fit tested with the same make, model, style, and size of respirator that will be used.
• 1910.134(g)(2)(iii) If the employee detects vapor or gas breakthrough, changes in breathing resistance, or leakage of the facepiece, the employer must replace or repair the respirator before allowing the employee to return to the work area.

Is COVID Infection a Work-Related Injury?

Under 1904.5(a), the determination whether an injury is work-related depends upon three issues: a documented infection, an event or exposure has to occur in the work environment, and the event had to cause or significantly aggravate the resulting condition.
However, “work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in §1904.5(b)(2) specifically applies.”
On its COVID-19 page, OSHA specifically states that “COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties.”

There may be two difficulties proving that a COVID infection is work-related.
First, confirmatory testing for coronavirus is, at best, difficult to obtain. Current guidelines from the CDC and from many state and county health departments are for patients with suspected COVID and non-severe symptoms to quarantine themselves for a minimum of 7 days from symptom onset. https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-when-sick.html.
Second, it may be difficult to prove when a coronavirus infection occurred. Just as with injuries that occur at home, if an employee became infected at home, COVID-19 would not be considered work-related illness. In the absence of coronavirus testing, documenting symptoms, CDC guidelines, others at work with similar symptoms, and the presence or absence of OSHA requirements for PPE and respiratory standards listed above may help preserve one’s rights in the future.

How Can I File A Workplace Safety Complaint to OSHA?

Anyone with any knowledge of workplace safety issues can file a safety complaint with OSHA. The web site to file an OSHA safety complaint is here: https://www.osha.gov/workers/file_complaint.html. If the web site is unavailable, to report an emergency, file a complaint with OSHA or ask a safety and health question, call OSHA directly at 1-800-321-6742.

While it may be tempting to report any adverse workplace condition, judiciousness is important. Good faith should be rewarded, bad faith should be reported. There is a huge difference between not having any available respiratory protection and refusing to provide respiratory protection that is available. Consider the actions of an employer as a whole. If an employer is making a good faith effort to prevent infections or exposures while still keeping the business running, reporting a minor violation to OSHA may be counterproductive. However, if an employer is threatening job loss if a worker refuses to work in unsafe conditions, or is requiring workers to defy sound medical practice and recommendations from medical organizations in a COVID crisis, bad faith decisions should be reported until action is taken.
Keep any written evidence of an employer’s bad faith demands to include with a complaint, such as memos, pictures, specific statements made by administrators and when those statements were made, and lists of other employees that may have been adversely affected or terminated because of the employer’s bad faith policies.

Can I Lose My Job For Filing an OSHA Complaint?

The Occupational Safety and Health Act contains language to protect workers from retaliation for raising or reporting concerns about workplace hazards or OSHA violations. See the language in 29 USC 660(c) here: https://www.law.cornell.edu/uscode/text/29/660. While an employer could technically fire or demote an employee for filing an OSHA complaint, such retaliation would form the basis for another complaint. In that case, employees would simply need to file a timely whistleblower claim against the employer with OSHA. The time limit for filing such an action can be extremely short, so filing any claim promptly is important. See the Department of Labor’s Whistleblower site here: https://www.whistleblowers.gov/.
If a whistleblower claim is found to have merit, OSHA would file an action in District Court on behalf of the employee. If an employer is found to have engaged in retaliation against an employee, an employer may be forced to reinstate the employee and to compensate the employee for back pay and interest, any expenses the employee incurred as a result of the retaliation; emotional distress, and even punitive damages.

OHSA Recommendations Related to COVID-19

OSHA has created an informative booklet summarizing recommendations to protect workers who may be exposed to SARS-CoV-2 while performing their job duties. https://www.osha.gov/Publications/OSHA3990.pdf

Among the recommendations contained in the OSHA’s COVID-19 booklet include

• Develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19.
• Where appropriate, employers should develop policies and procedures for immediately isolating people who have signs and/or symptoms of COVID-19, and train workers to implement them. Move potentially infectious people to a location away from workers, customers, and other visitors. Although most worksites do not have specific isolation rooms, designated areas with closable doors may serve as isolation rooms until potentially sick people can be removed from the worksite.
• Take steps to limit spread of the respiratory secretions of a person who may have COVID-19. Provide a face mask, if feasible and available, and ask the person to wear it, if tolerated. Note: A face mask (also called a surgical mask, procedure mask, or other similar terms) on a patient or other sick person should not be confused with PPE for a worker; the mask acts to contain potentially infectious respiratory secretions at the source (i.e., the person’s nose and mouth).
• If possible, isolate people suspected of having COVID-19 separately from those with confirmed cases of the virus to prevent further transmission—particularly in worksites where medical screening, triage, or healthcare activities occur, using either permanent (e.g., wall/different room) or temporary barrier (e.g., plastic sheeting).
• Protect workers in close contact with (i.e., within 6 feet of) a sick person or who have prolonged/repeated contact with such persons by using additional engineering and administrative controls, safe work practices, and PPE.
• Workers, including those who work within 6 feet of patients known to be, or suspected of being, infected with SARS-CoV-2 and those performing aerosol-generating procedures, need to use NIOSH-approved, N95 filtering facepiece respirators or better.
• When disposable N95 filtering facepiece respirators are not available, consider using other respirators that provide greater protection and improve worker comfort. Other types of acceptable respirators include: a R/P95, N/R/P99, or N/R/P100 filtering facepiece respirator; an air-purifying elastomeric (e.g., half-face or full-face) respirator with appropriate filters or cartridges; powered air purifying respirator (PAPR) with high-efficiency particulate arrestance (HEPA) filter; or supplied air respirator (SAR).
• Actively encourage sick employees to stay home.
• Ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
• Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
• Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
• Maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual
• Installing high-efficiency air filters.
• Increasing ventilation rates in the work environment.
• Establishing alternating days or extra shifts that reduce the total number of employees in a facility at a given time, allowing them to maintain distance from one another while maintaining a full onsite work week.

OSHA N-95 Mask Update

Effective March 14, 2020, OSHA changed its enforcement of fit testing requirements provided that the employer “makes a good faith effort” to comply with the regulations, uses only NIOSH-certified respirators, and explains to workers the basics of fit testing as listed in this bulletin: https://www.osha.gov/memos/2020-03-14/temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit

Summary

During a pandemic, employers need to take appropriate steps to protect their employees and employees need to protect themselves. Employers who act in bad faith during these difficult times should not be allowed to continue their actions without scrutiny.

For more information about legal issues related to coronavirus, see these other articles in the Coronavirus category.