Although COVID-19 along with the shutdown orders have forced many Americans to hunker down, there are those who are working outside their homes. Clearly, this may place employees in danger of being exposed to and ultimately contracting the virus. Therefore, what rights do employees have regarding safe working conditions during the pandemic?
This seems to be a popular issue. On a recent episode of Law & Crime Network Q&A Live, a viewer, who recently accepted a job working in an Amazon warehouse, expressed concerns about what protocols companies are putting in place to ensure the safety of their workers as the virus runs rampant. Attorney Angela J. Reddock-Wright explained, “Amazon and other companies definitely have a duty, if they are still operating, to make sure that they create a safe environment for everyone working.” Let’s break this down.
The Occupational Safety and Health Administration (OSHA) is the federal agency that administers workplace safety protocols and conducts reviews across the country. OSHA’s mission is defined under the Occupational Safety and Health Act of 1970 (the “OSH Act of 1970”) as follows:
To assure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act; by assisting and encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information, education, and training in the field of occupational safety and health.
OSHA has divided workplaces into four categories depending on their level of exposure to or risk of contracting the coronavirus:
- Lower Exposure Risk
- Medium Exposure Risk
- High Exposure Risk
- Very High Exposure Risk
“Lower Exposure Risk” occupations are those where it isn’t really necessary to be around people. Long distance truckers, people working from home, telemedicine workers, and those in offices and facilities who are separated from co-workers all fall into this category.
“Medium Exposure Risk” occupations require workers to consistently be around or be near people that may have COVID-19. This focuses on jobs where workers come into contact with the “general public” (e.g., schools, large stores) or with international travelers from areas with sweeping cases of coronavirus.
“High Exposure Risk” are occupations with a “high” likelihood of being around people that have or are believed to have COVID-19. This category includes healthcare delivery or support staff, funeral personnel, and medical transporters (i.e. ambulance drivers) who all are required to come into contact with people known to have or suspected of having coronavirus.
“Very High Exposure Risk” occupations are those with a “very high” likelihood of being around people that have or are believed to have COVID-19 because of the nature of the work to be performed on these sick or potentially sick people. This category includes medical professionals, such as, doctors and nurses, conducting “aerosol-generating procedures” (i.e., may result in production of respiratory droplets), those collecting or handling medical samples, and examiners performing autopsies.
OSHA also provides an additional, though not an all-encompassing, list of other jobs that may have increased exposure to COVID-19, such as those in emergency response, delivery service, airline activities, and waste management.
This classification system provides Americans an understanding of the inherent danger of their jobs and perhaps an idea of the safety measures they should expect to be implemented by their employers.
What should they expect, though?
Currently, there is no specific OSHA mandate or rule on what employers are required to do to protect their employees from COVID-19. OSHA did publish a guide for employers entitled, “Guidance on Preparing Workplaces for COVID-19,” which provides additional information regarding the virus and steps to follow to potentially contain exposure at the workplace. Yet, OSHA cautions:
This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.
However, OSHA does mandate that employers follow their generalized obligation under the OSH Act of 1970. The “General Duty Clause,” Section 5(a)(1), states that “[e]ach employer shall furnish to each of his employees 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 to his employees.” (29 USC §654 (a)(1)). OSHA has cited this clause as a requirement for employers in “preventing occupational exposure” to COVID-19.
Additionally, OSHA has promulgated certain standards that may apply to the coronavirus crisis. The Personal Protective Equipment (PPE) standards are set forth in 29 CFR 1910 Subpart I and explain what employers must do with respect to the furnishing of this protective gear. Under the “General Requirements” provision of 1910.132(a):
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 by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
Since COVID-19 is a respiratory disease, employees should also review whether their employer has created a system in accordance with the “Respiratory Protection” protocols under 29 CFR 1910.134. This section explains how “[a] respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee” (1910.134(a)(2)), “requires the employer to develop and implement a written respiratory protection program with required worksite-specific procedures and elements for required respirator use” (1910.134(c)), and how “the primary objective shall be to prevent atmospheric contamination” (1910.134(a)(1).
OSHA also developed a “Bloodborne Pathogen”standard (29 CFR 1910.1030) that may not directly apply to COVID-19 workplace situations because the virus is mostly spread through respiratory droplets, not blood, but as OSHA explains on its website, “the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.”
Finally, there are recording requirements for employers during this pandemic as well. Under 29 CFR 1904, OSHA explains when and how employers must properly record and report to the government “work-related” deaths, injuries or illnesses of their employees. OSHA has identified COVID-19 as a potential “recordable illness” if the following are met:
- Confirmed case of COVID-19
- Work-related (29 CFR 1904.5)
- Meets one or more of the general recording criteria under 29 CFR 1904.7 (e.g., diagnosis required, illness results in death or absence from work, etc.)
Bottom line: employees should determine what job classification system they fall into based on their risk of exposure to the virus. Then they must evaluate whether their employer is both providing adequate safeguards in compliance with OSHA standards and recording and reporting COVID-19 cases in the work-place appropriately.
If an employee believes there is a violation of their safety and health rights under OSHA, what is the next step? Speaking with your employer or even your union would be the way to correct the problem in ideally a more productive way. If the work-related issue persists though, an employee can report the purported violation to OSHA. You can file a complaint here. This could lead to an inspection of the workplace by an OSHA representative, citations, and in more severe cases, monetary penalties and imprisonment (see also a Memo on 2020 Adjusted OSHA Civil Penalties).
There is also a streamlined process to report “imminent dangers,” which is defined under the OSH Act of 1970 as “any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” It is possible COVID-19 situations could arise to that level. In these extreme cases, OSHA advises employees to immediately call (800) 321-OSHA, which could result in a federal court intervening in the matter.
Employees who are fearful that their employers will retaliate against them for submitting complaints to OSHA are protected under federal law. Section 11(c)(1) of the OSH Act of 1970 states:
“No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.” 29 USC §660(c)(1).
In terms of actual enforcement by OSHA of workplace and safety violations though, employees should be aware that given the complexities and unprecedented nature of the coronavirus pandemic, a series of directives have been promulgated now allowing compliance officers discretion in how they enforce defined standards. For example, employers can decrease their amount of certain PPE, most likely to fulfill the supply for the healthcare industry, and OSHA will permit many employers some latitude in their recording and reporting requirements. For more information, OSHA has developed both a page featuring the new enforcement guidance directives regarding COVID-19 as well as the “Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19).”
As previously mentioned, employees can always contact OSHA, but it may be more efficient to reach out to their local office. OSHA provides an interactive map listing the contact information for each of its local branches by state as well as OSHA-approved State Plan offices, which may have their own standards for protection and enforcement (e.g., California has an Aerosol Transmissible Diseases standard; Oregon’s office is increasing on-site reviews amid a flurry of complaints).
Clearly, this can be a complex legal issue, particularly with the evolving changes of coronavirus. Therefore, before taking any action, employees should consider first consulting with an attorney specialized in this area, especially if they are contemplating filing a lawsuit against their employer for violations of their rights.
[Image via Rob Carr/Getty Images]
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