With COVID-19 surging as the United States enters the winter months and holiday season, employers in all industries can expect to grapple with significant COVID-19 hazards for the foreseeable future. Employers in the healthcare industry though are doubly burdened not only by increased workloads stemming from higher numbers of ill patients, but also by increased health and safety risks for their workers. Accordingly, healthcare employers should pay close attention to guidance and updates from the Occupational Safety and Health Administration (OSHA) and implement appropriate plans and protocols—if not already in place—to address COVID-19 hazards to their workers.

OSHA recently announced that, through November 5, 2020, it had issued 204 citations based on alleged violations related to COVID-19. These citations resulted in $2,856,533 worth of proposed penalties and generally stemmed from complaints, referrals, or fatalities in a number of essential industries, such as “hospitals and healthcare, nursing homes and long term care settings, and meat/poultry processing facilities.”

OSHA has not yet issued regulations specifically concerning COVID-19 hazards in the workplace, but it has issued general guidance based on the worker exposure risk associated with particular groups of employees. In the healthcare industry, workers could fall into either the high risk or very high risk categories, depending on the nature of their employers’ businesses and their particular job duties. Workers have “high exposure” risks if they have “high potential for exposure to known or suspected sources of COVID-19” in general, including workers with “healthcare delivery, healthcare support, medical transport” duties and certain mortuary workers.[1] Further, workers have “very high exposure” risks if they have “high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures.” Very high exposure risk includes “healthcare and morgue workers performing aerosol-generating procedures on or collecting/handling specimens from potentially infectious patients or bodies of people known to have, or suspected of having, COVID-19 at the time of death.”

For workers in these higher risk categories, OSHA suggests various engineering and administrative control measures, safe work practices, and provisions of appropriate personal protective equipment (PPE). Engineering controls might include installation and maintenance of “appropriate air-handling systems” and use of isolation rooms, while administrative controls might include additional signage and “enhanced medical monitoring of workers.” Workers in the lower and medium exposure risk categories do not always need PPE (according to OSHA), but workers in the high and very high exposure risk categories probably do—e.g., gloves, gowns, face shields, goggles, and respirators.

Employers providing items that meet OSHA’s definition of PPE should be mindful that they may then be required to abide by OSHA’s PPE, Respiratory Protection, or other applicable standards and may need to provide training to employees in PPE fit and usage and make modifications to the PPE provided to accommodate specific employee needs (e.g., employees with disabilities). In that regard, OSHA noted that its “most frequently cited standards” included “Respiratory Protection, Recording and Reporting Occupational Injuries and Illnesses, Personal Protective Equipment and the General Duty Clause.”

Common OSHA citations related to COVID-19 hazards included failure of employers to:

• Perform medical evaluations of workers before fit-testing respirators;
• Perform appropriate fit-tests for certain workers;
• Perform workplace assessments for COVID-19 hazards, including the need for additional, appropriate PPE[2];
• Have appropriate “written respiratory protection program[s]”;
• Provide and properly store appropriate PPE, as well as provide appropriate training for use of PPE;
• Train workers on workplace changes that might negate prior training;
• Report fatalities within OSHA’s required time-frame; and
• Maintain OSHA logs for work-related injuries, illnesses, and fatalities.

To be sure, OSHA has also cited employers outside the healthcare industry for these alleged violations, but these issues are particularly relevant for employers with employees designated with high and very high exposure risks, such as certain employers in the healthcare space.

In light of these common issues, employers should, at a minimum, undertake the following steps to minimize their OSHA risks, to protect their workers, and to be ready should OSHA come knocking:

• Perform employee risk assessments, focusing on the nature of the business and the particular job duties of the workers;
• Implement—and follow—appropriate safe work practices (based on employee exposure risks), including, by way of example, instructing employees to wash their hands with soap regularly and use hand sanitizer frequently;
• Implement appropriate, workplace-specific administrative and engineering controls based on employee exposure risks (g., staggered employee shifts, temporary shut down or postponement of non-essential activities and work, installation of physical barriers, etc.);
• Promptly and fully address employee safety concerns and complaints;
• Document relevant safety considerations and measures; and
• Involve senior management, human resources, and appropriate legal counsel when addressing COVID-19 hazards and issues in the workplace to ensure consistency and thoroughness.

[1] Unless otherwise noted, all emphasis is added by the author and not in the original cited text.

[2] Please note that OSHA has been somewhat noncommittal—due to the due to recent CDC guidance—about whether cloth face coverings, in and of themselves, are PPE that would trigger an employers’ obligations under OSHA’s PPE standard.