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

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.