Pandemic Workplace Safety – OSHA vs. States on Masks and More
Recently I joined a group of manufacturing professionals to share tips on building and maintaining infectious disease and response plans during the COVID-19 pandemic. As usual, the conversation turned to masks. Are they still a requirement at work or not?
Masks or face coverings are one of the most controversial and politicized garments in our lifetime. And now, as states roll back mask mandates, businesses struggle with whether or not to require their employees to wear them. The simple answer is yes they should. But the reasons behind that answer aren’t so simple.
To understand why you have to go back to the beginning of this year when President Biden issued an executive order requiring the federal government to take strong actions to protect workers from the COVID-19 pandemic.
In response, the Occupational Safety and Health Administration (OSHA) released new guidance for companies on preventing exposure and the spread of COVID-19 in the workplace.
When reading these guidelines, you’ll often see the word “should” instead of “required.” That’s because they’re guidelines rather than requirements. In the weeks ahead, they could become mandatory regulations. Also, note that in the new guidance, some items are already required.
So, with this context in mind, it’s important to know that a state rollback of a mask mandate doesn’t override federal or state OSHA guidance or regulations in the workplace. OSHA is still OSHA.
OSHA’s current guidelines are an essential component of its mandate for employers to provide a safe and healthy workplace. If employees alert OSHA they feel unsafe because masks are not required, or their coworkers aren’t wearing them, the federal agency can cite and fine the company under the General Duty Clause.
Mask Guidelines for Effective Masks and Disability Requirements
Even as more people receive vaccinations, it remains unclear if a seemingly healthy, vaccinated person can spread the disease to others. And there’s the uncertainty over the potential impact of new virus variants and how long the existing vaccines remain effective. Therefore, OSHA will likely continue recommending or requiring face coverings for employees until these uncertainties are eliminated, and the pandemic is under control.
Under OSHA’s current guidelines, employers should provide face coverings for all workers who don’t require a respirator. Companies with employees who suffer from hearing impairments are urged to provide masks with a clear mouth covering when needed to allow lip reading. And face coverings should have at least two layers without any valves or vents.
Companies can’t use masks with valves or vents because they allow unfiltered exhaled air to pass through and potentially expose others. Bandannas and gaiters are also ineffective. Visors, also known as face shields, are not considered a replacement for masks. They are designed to block splashes or saliva particles, not filter air. That’s why you’ll often see people wearing both a face mask and visor.
If you have an employee who suffers from a breathing disorder and struggles with a mask, a visor alone is not an acceptable alternative. If employees have health conditions that prevent them from breathing through a face covering, they should be assigned to a work area where they’re not exposed to others or accommodated in some other way such as working from home.
If your employees are working in areas where it’s wet or dirty, OSHA recommends you provide new face coverings at least once a day, maybe even more frequently depending on your facility’s operations.
These protective mask measures must stay in place even after everyone in the workplace is vaccinated.
In addition to mask recommendations, OSHA provided guidance in several other areas such as vaccines, quarantines, and reporting.
Vaccines Can Be a Condition of Employment…Maybe
Employers can require COVID-19 vaccines as a condition of employment, although the allowable exceptions and legal implications are still under heavy debate.
In a 2009 letter of interpretation related to Novel H1N1 Influenza A, OSHA stated:
“OSHA does not specifically require employees to take the vaccines, an employer may do so. In that case, an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistle blower rights.”
We recommend employers consult with their legal counsel when making this decision.
Continue Quarantines, FFCRA Credits Extended through September
OSHA continues to recommend companies quarantine workers after they’re exposed to someone who has tested positive for COVID-19. This includes, for example, anyone who has hugged, kissed, or shared eating or drinking utensils with an infected individual. The same applies, of course, to being sneezed or coughed on by someone with COVID-19, whether at work or on personal time. If you quarantine an employee, OSHA recommends you not penalize them or restrict their pay.
On March 11th, President Biden signed the American Rescue Plant Act (ARPA) into law extending the FFCRA paid leave credit to Sept. 30, 2021. This ensures employers will continue to receive tax credits as reimbursement for providing paid leave to employees who are either sick or quarantining due to COVID-19.
The ARPA includes a “restart” of the 10-day limit for paid sick leave credits available to any individual employee. Beginning April 1, 2021, any days previously taken are not counted toward the new 10-day limit, resetting any number of days employees took off paid sick days back to zero. The ARPA also expands qualifying reasons to include waiting for COVID-19 test results and receiving a vaccine.
Recording and Reporting COVID-19 Infections and Deaths
Work-related cases involving COVID-19 must be recorded if the criteria in 29 CFR 1904 are met. COVID-19 fatalities and hospitalizations must be reported to OSHA in accordance with 29 CFR 1904.
Anticipated Emergency Temporary Standard and Permanent Standard
OSHA recently delayed releasing an Emergency Temporary Standard (ETS) on COVID-19 that was expected in March. An ETS is different from the latest guidance because it is enforceable.
An ETS is valid until a permanent standard replaces it. Some states have already implemented their own COVID-19 ETS. And many experts suggest OSHA should release an ETS that applies to all pandemics including COVID-19.
Of course, even in the absence of a temporary or permanent standard, OSHA’s General Duty Clause requires employers to provide a work environment “free from recognized hazards that are causing or are likely to cause” harm or death. This clause applies to any workplace that doesn’t enforce reasonable COVID-19 safety precautions.
These are just some of the OSHA recommendations included in their COVID-19 guidance. You can read OSHA’s full Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace here. You can also check out the replay of our webinar on this topic: Infectious Disease and Response Plans to Manage COVID-19 & OSHA.
When OSHA releases an ETS or permanent standards for COVID-19 and pandemic preparation and response, we’ll loop back to provide insights and an overview.