Section 5(a) of the Occupational Safety and Health Act (the General Duty Clause), requires that employers provide their employees with a workplace free from recognized hazards likely to cause serious physical harm or death.
OSHA’s guidance breaks down the risk of exposure in the workplace into four categories, from the highest risk (e.g., jobs with direct contact with potential COVID-19 patients) to the lowest risk (e.g., jobs with infrequent contact with the public or potential COVID-19 patients).
For each category, OSHA details the type and extent of personal protective equipment (“PPE”) and safety procedures that are appropriate, as well as the administrative and engineering controls that can be implemented to reduce viral transmission. In addition, OSHA requires employers to comply with existing health and safety standards and regulations disseminated by OSHA or a state with an OSHA-approved plan.
OSHA also recently issued a poster (in English and Spanish) outlining key infection prevention measures employers can take to protect worker safety and health during the COVID-19 pandemic. Although employers are not required to post this information in the workplace, doing so may assist the employer in showing that it has taken good-faith steps to comply with OSHA’s workplace safety requirements.
In guidance issued on April 16th, OSHA stated it will evaluate an employer’s good faith efforts to comply with applicable OSHA standards by exploring all options the employer had to comply with. An employer should be able to demonstrate its good faith attempts to meet the applicable requirements as soon as possible following the reopening of the workplace. Where employers cannot demonstrate good faith efforts to comply, they risk an OSHA citation.