Posted on

OSHA’s General Duty Clause: How does it relate to COVID-19?

Over the past month, the Occupational Health and Safety Administration (OSHA) has amped up enforcement efforts by issuing a plethora of citations against employers regarding the pandemic. This comes at the same time as the reopening of business and should be met with seriousness, as employers have a responsibility under OSHA’s “General Duty” Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1) and record-keeping requirements as they apply to the threat of exposure to SARS-CoV-2.

OSHA issued this guidance, based on traditional infection prevention and industrial hygiene methods. It emphasizes employers’ need of planning and implementation of engineering, administrative, work practice controls in addition to personal protective equipment (PPE) considerations.

 Employers can be cited for violating the General Duty clause if:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  2. The hazard was recognized;
  3. The hazard was causing or was likely to cause death or serious physical harm; and
  4. There was a feasible and useful method to correct the hazard.

Although these guidelines are advisory, as there is no specific OSHA standard covering COVID-19 exposure, it neither creates new legal obligations nor alters existing obligations created by OSHA standards or the Occupational Safety and Health Act (OSH Act). There are also OSHA-approved State Plans that are at least as effective as OSHA’s but may have differing standards, regulations, and enforcement policies. This guidance, as well as state plans, are subject to change as new information about the transmission, and impact of the COVID-19 becomes known. OSHA has advised that the OSH Act’s Personal Protective Equipment and Bloodborne Pathogens standards may apply, in conjunction with the General Safety Clause in relation to employers’ duty to prevent occupational exposure to SARS-CoV-2.

 

 

 

 

Posted on

OSHA Announces Temporary PAPR Guidelines

Due to the impact of increased demand for N95 filtering facepiece respirators (FFRs) coupled with limited global availability, OSHA recommends the reassessment of engineering and administrative controls by employers to accommodate the shortage of N95 FFRs. 

OSHA has released temporary guidelines for healthcare personnel and workers in high to very high-exposure-risk professions. These guidelines are regarding the Respiratory Protection standard for Powered Air Purifying Respirators (PAPRs) and apply only to the fit-testing of National Institute for Occupational Safety and Health (NIOSH) approved PAPRs.

N95 FFRs should now only be used under contingency and in crisis-capacity methods for example: respirator decontamination, extended use, and reuse. This involves taking steps to temporarily suspend non-essential duties and consider the feasibility of increasing the use of wet methods or portable local exhaust systems for dust-generating activities or move operations outdoors, thereby eliminating the need for N95 FFRs. 

OSHA states that “if respiratory protection must be used, employers may consider the use of alternative classes of respirators that provide equal or greater protection compared to an N95 filtering facepiece respirator, such as N99, N100, R95, R99, R100, P95, P99, and P100 respirators and NIOSH-approved, non-disposable elastomeric respirators or powered air-purifying respirators, either loose-fitting or tight-fitting”. The new policy allows the use of tight-fitting PAPRs approved by NIOSH for protection against exposure risk to SARS-CoV-2 when initial and/or annual fit testing is unworkable due to fit-testing and respirator supply shortages.

These guidelines are not applicable to all PAPRs. PAPRs that are excluded from these guidelines are:

  • Those that have not been approved by NIOSH;
  • Have been used by workers with low or medium exposure risk to the coronavirus; 
  • Have been used or for protection against airborne hazards other than SARS-CoV-2, such as chemical hazards; and
  • That is loose-fitting and/or hooded and that do not require fit testing.

The agency has permitted CSHOs to exercise discretion in enforcement when considering issuing citations for fit-testing requirements. That being said, employers should note that OSHA’s Enforcement Guidance does not suspend or reduce any obligation of businesses to protect employees from potential airborne biological hazards. Discretion is warranted when the employer/business has:

  • Provided PAPRs using a high efficiency (HE) particulate cartridge or filter to protect personnel from exposure to SARS-CoV-2
  • Monitored fit-testing supplies and made good-faith efforts to obtain fit-testing supplies;
  • Implemented engineering controls, work practices, or administrative controls that reduce the need for respiratory protection, such as using partitions, restricting access, and cohorting patients; and
  • Maintained all elements of a fully compliant respiratory protection other than fit-testing requirements. By ensuring that all personnel receive required medical evaluations, are informed of new policies, trained on new procedures, ensuring batteries and filters for PAPRs are well maintained to provide positive pressure throughout the duration of the employee’s shift or procedure, and ensuring employees wearing tight-fitting PAPRs maintain facial hair that does not compromise the seal of the respirator or interfere with valve function.