As communities and businesses continue to grapple with the practical and legal implications of COVID-19, several safety, health, and environmental agencies have issued guidance regarding employers’ compliance obligations and potential mitigation to address the infectious disease. Specifically, the Occupational Safety and Health Administration (OSHA) and the California Department of Occupational Safety and Health (Cal/OSHA) have issued guidance regarding potential workplace hazards resulting from exposure to COVID-19. This guidance, in turn, incorporates more detailed guidance from the Centers for Disease Control and Prevention (CDC). Meanwhile, the U.S. Environmental Protection Agency (EPA) recently updated its list of registered disinfectants for use against COVID-19.
Federal OSHA, which regulates worker health and safety in the 22 states that do not have their own approved state plans, has published guidance regarding the protection of workers from COVID-19. Although the agency has not promulgated a regulation that specifically addresses COVID-19, it identifies several regulatory standards that apply to the protection of workers from infectious disease hazards, including:
- 29 C.F.R. 1910, subpart I – Personal Protective Equipment (PPE)
- 29 C.F.R. 1910, subpart J – General Environmental Controls
- 29 C.F.R. 1910, subpart Z – Toxic and Hazardous Substances
- 29 C.F.R. 1904 – Recordkeeping and Reporting Occupational Injuries and Illnesses
- Section 5(a)(1) of the Occupational Safety and Health Act – General Duty Clause
OSHA makes clear that appropriate transmission control measures “depend on the type of work being performed and exposure risk, including potential for interaction with infectious people and contamination of the work environment.” In order to determine what measures are most appropriate and effective for a given employer, the agency’s guidance states that “employers should adapt infection control strategies based on a thorough hazard assessment, using appropriate combinations of engineering and administrative controls, safe work practices, and personal protective equipment (PPE) to prevent worker exposures.” For additional information, OSHA’s guidance refers employers to the CDC’s COVID-19 interim guidance to businesses and employers in order to determine the potential for infection at their individual facilities and corresponding control measures that may be appropriate.
OSHA also makes clear that certain industries and work activities may experience elevated exposure risk due to a higher likelihood of interaction with potentially infected individuals. These industries may be subject to additional regulations at the federal, state, or local level, and include:
- Health care
- Airline operations
- Border protection
- Solid waste and wastewater management
- Travel to areas, including parts of China, where the virus is spreading
On March 6, 2020, Cal/OSHA released Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease. These guidelines highlight that California requires “employers covered by the Aerosol Transmissible Diseases (ATD) Standard (California Code of Regulations, title 8, section 5199) to protect employees from airborne infectious diseases such as COVID-19 and pathogens transmitted by aerosols.” The ATD Standard applies to:
- Hospitals, skilled nursing facilities, clinics, medical offices, outpatient medical facilities, home health care, long-term health care facilities, hospices, medical outreach services, medical transport and emergency medical services
- Certain laboratories, public health services, and police services that are reasonably anticipated to expose employees to an aerosol transmissible disease
- Correctional facilities, homeless shelters, and drug treatment programs
- Any other location when Cal/OSHA informs the employer in writing that it must comply with the ATD Standard
Cal/OSHA goes on to state that employers not covered by the ATD Standard should follow the CDC guidance for employers and businesses, referenced above, and continue to comply with other applicable standards, including:
- Title 8, section 3203 – California illness and injury prevention program
- Title 8, sections 1527, 3366, 3457, 8387.4 – washing facilities
- Title 8, section 3380 – PPE
- Title 8, section 5141 – control of harmful exposures
EPA list of registered disinfectants
Finally, on March 3, 2020, the EPA updated and issued its List N of disinfectants for use against SARS-CoV-2 (the coronavirus that causes COVID-19) under the Federal Insecticide, Fungicide, and Rodenticide Act. In conducting cleaning and disinfection of workplaces either in anticipation of, or response to, the presence of COVID-19, employers should refer to this list in selecting appropriate cleaning agents.
In light of the above guidance and referenced regulatory standards, employers should consider undertaking hazard and compliance assessments to determine whether measures beyond those currently in place are appropriate, including potentially an infectious disease outbreak response plan. For guidance regarding wage and employment implications of COVID-19, Reed Smith’s Labor & Employment Group has developed separate detailed updates on these issues and can advise you further.
Client Alert 2020-085