Workplace Safety in the COVID-19 Pandemic

Maheema Haque and Tatiana Follett 12/8/2020

Lab worker

Introduction

During the COVID-19 pandemic, both the federal and state governments have placed renewed attention on workplace safety legislation and guidelines. 

The main federal agency in charge of workplace safety is the Occupational Safety and Health Administration (OSHA) created by the Occupational Safety and Health Act (OSH Act) in 1970. OSHA’s mission is to “assure safe and healthy working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.” 

States can also opt to create their own occupational safety and health organizations to either expand or replace OSHA provisions/guidelines. This page examines federal OSHA and state-level responses to the pandemic, as well as state actions and provisions that replace or supplement general OSHA guidance on workplace safety.   

OSHA Coverage

OSHA covers most private-sector workers and some public sector employers in every U.S. state and territory--including all federal agencies. The agency itself falls under the Department of Labor, and the OSHA Administrator reports to the Secretary for Labor. Notably, OSHA  does not cover state or local government employees under the OSH Act. However, these employees may still have protections under their state OSHA boards. OSHA also does not have authority over the self-employed, family farm employees, as well as employees in industries covered by other federal regulations: e.g., mining, nuclear energy/weapons, and transport.

OSHA Regulation 

OSHA serves two main regulatory functions: to set standards; and to enforce these standards,  by providing training, outreach, education and assistance, as well as by monitoring and inspecting work environments to hold employers accountable.

OSHA follows the notice and comment rulemaking procedure when deciding and issuing standards for workplaces. Upon request, it also holds public hearings on proposed regulations. Employers and state lawmakers should also note the General Obligations Clause of the OSH Act. Under the Clause, each employer "shall furnish . . . a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” regardless of whether OSHA has already set forth a standard or regulation concerning that type of workplace. OSHA also provides worker training on its standards and rules using two programs. Its Outreach Training Program “provides training for workers and employers on the recognition, avoidance, abatement, and prevention of safety and health hazards in workplaces.” It also gives workers information about their rights, employer responsibilities, and how to file a complaint. In addition, OSHA’s Education Centers provide additional opportunities for the public to receive training on safety and health topics. 

OSHA enforces its standards through several means, increasing in severity. It offers both consultations and compliance assistance programs (e.g., Strategic Partnership Program) for employers in all states. Participation in these programs is preventative, voluntary, and usually does not result in enforcement actions. OSHA also conducts unannounced inspections of high priority workplaces. Inspections are organized based on: imminent danger, catastrophes (fatalities or hospitalizations), worker complaints and referrals, targeted inspections (particular hazards, high injury rates), and follow-up inspections. Complaints filed with OSHA are either investigated or their workplace inspected, and can result in fines and citations against the employer. Employees have a right to attend the inspection and speak with the OSHA investigator. Complainants are granted whistleblower protections. OSHA enforces the whistleblower provisions of more than 20 federal statutes; if evidence supports the employee’s claim of retaliation, OSHA can require the employer to restore the employee’s job, earnings, and benefits.

Ways to achieve OSHA Compliance

Three ways exist for states to achieve compliance with OSHA requirements. States can choose to remain under federal OSHA protection, which covers private sector and federal workers, but does not cover state and local government workers. On the other end of the spectrum, states can opt to design their own, pre-approved workplace safety requirements. These plans cover private sector, state and local government employees. Finally, states can accept federal OSHA regulation for private-sector employees and supplement that protection with a pre-approved state plan for state and local government workers. Only six states and U.S. territories have chosen this option: Connecticut, Illinois, Maine, New Jersey, New York and the U.S. Virgin Islands. 

Federally Regulated States

States under federal OSHA regulation must adhere to all federal guidelines. Regulation and enforcement is carried out by OSHA via 10 regional offices and 89 local offices. Enforcement is carried out via random inspections by compliance officers. Priorities of inspection include: 

  1. Imminent danger
  2. Catastrophes
  3. Worker complaint
  4. Inspection on specific issues
  5. Follow-up

Federal OSHA regulations pose the following general requirements and guidelines:

  1. Employer reporting with death/ hospitalization. 
  2. Recordkeeping on injury and illness for employers with more than 10 employees and not a partially exempt industry using the OSHA recordkeeping system.
  3. Workers can file complaints by phone, email, or at the nearest OSHA office. Workers may choose to remain anonymous.
  4. Whistleblower protections as explained above

Pre-Approved State Plans

The authority for states to create their own approved plans found in Section 18 of OSH Act. OSHA provides up to 50% of funding for state plans. If states opt to create their own plans, they must follow strict OSHA requirements. 

According to Section 18 of OSHA, state-approved plans must include safety and health standards that are “at least as effective” as OSHA standards. The plans must grant authority for the program to enter and inspect workplaces, and for “qualified personnel” to enforce provisions of the act. Finally, states with preapproved plans must report to the U.S. Secretary of Labor in the same manner as states directly regulated under OSHA. 

For example, Virginia operates under a pre-approved plan which covers most private-sector workers and all state and local employees. The plan incorporates most federal OSHA requirements. In addition, Virginia has employed the following guidelines:

General Industry

Construction

Agriculture

  • Reverse signal operation Safety for Vehicles
  • Telecommunications and electrical hazards
  • Confined spaces in the telecommunications industry
  • Tree trimming
  • Overhead high voltage line
  • Medical services/ first aid
  • Sanitation 
  • Steel erection
  • Reverse signal operation
  • Overhead high voltage
  • Field sanitation

State Supplemental Plans

States such as Illinois use Federal OSHA protection for private-sector workers, but have adopted their own protections for state and local employees. 

Illinois supplemental protections adopt OSHA standards 29 CFR parts 1910, 1915, 1926, which concern general industry, shipyards, construction. The state implemented it’s own record-keeping system for state and local government employees. Illinois also maintains it’s own inspection and enforcement program and runs scheduled inspections as well as inspections in response to danger reports, fatalities, worker complaints, or referrals.

A color-coded map illustrating various state paths to OSHA compliance is available on the OSHA website

Workplace Safety Legislation in the COVID-19 Pandemic

The response to the COVID-induced recession has come from both federal and state legislatures.

Federal Legislation

FFCRA: The Families First Coronavirus Response Act was the first major federal piece of legislation passed in response to the COVID pandemic. This legislation created two new, complementary emergency paid leave provisions: Emergency Paid Sick Leave (EPSL) and Emergency FMLA Leave (EFMLEA). The Emergency Paid Sick Leave Act (EPSLA) requires employers (with some exceptions) to provide up to 80 hours of paid leave to employees who cannot work or telework due to reasons related to the pandemic. The Emergency Family Medical Leave Expansion Act (EFMLEA) amends and expands the 1993 Family Leave and Medical Leave Act to provide eligible employees with up to 12 weeks of partially-paid leave for COVID-related reasons, including childcare needs. This provision also affords wage replacement rights for up to 10 days of paid sick leave, beyond what the FMLA provides. Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements. Notably, employers with fewer than 500 employees are eligible for 100% tax credits for Families First Coronavirus ​Response Act COVID-19 paid leave provided through Dec. 31, 2020, up to certain limits.

CARES Act: The Coronavirus Aid, Relief, and Economic Security Act, signed into law on March 27, 2020, is the second major piece of legislation by the federal government in direct response to the COVID pandemic. It is divided into two main parts: Division A, which authorizes several programs and mandates spending for others, and Division B, which contains “emergency, discretionary appropriations.” While expansive, key provisions relate directly to changes in labor and employment.

Division A, in particular, included “provisions to address potential workforce issues,” including changes to unemployment insurance qualifications and benefits (e.g., the Federal Pandemic Unemployment Compensation). It provided for an Employee Retention Tax Credit to businesses affected by COVID shutdown orders. It also increases flexibility for certain federal employee deployments (e.g., regarding sick leave policies), promotes training opportunities for healthcare workers, and adds reporting requirements on workforce issues. 

OSH Act: The Department of Labor has also pointed to provisions in the OSH Act that also apply to the COVID pandemic. According to 29 C.F.R. 1904, “employers are required to record illnesses that are ‘work related’ and meet one of the recording criteria, which include days away from work, job transfer, and medical treatment.” Under §1904.39, employers may be required to “report an employee’s coronavirus infection to OSHA.” 

ADA: Guidance from the EEOC has highlighted provisions of the American Disabilties Act relevant to pandemic preparation. The guidance reinforces that the ADA regulates employers’ disability-related inquiries for both applicants and employees. The EEOC has also provided further COVID-specific guidance on hiring during the pandemic. According to the EEOC guidance, the ADA prohibits employers from “excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a ‘direct threat’ (i.e. a significant risk of substantial harm even with reasonable accommodation).” However, the EEOC has also determined that COVID-19 diagnoses do meet the direct threat standard, meaning COVID-19 patients are not protected by the non-discrimination standards of ADA. Updated EEOC guidance confirms employers may question sick employees about their symptoms. Finally, the EEOC guidance emphasizes that, regardless of the previous provisions, the ADA requires “reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.”

Federal Regulations

Both the CDC and the Department of Labor have provided their own guidance for employers re-opening during the pandemic. 

CDC Guidance: Notably, the CDC guidance is voluntary, and not enforceable by any government agency. The guidance provides day to day guidance for employers, including encouraging sick employees to stay home, developing daily health screenings for employees, separating sick employees, and disinfecting areas they have been. The CDC also provides separate guidance for ‘critical infrastructure’ workplaces vs. most other workplaces.The guidance also recommends more structural accommodations for the pandemic. It encourages workplaces to conduct hazard assessments and base PPE and controls based on these assessments. It recommends that employers implement flexible sick leave and ‘supportive policies,’ especially on protecting high risk employees, absenteeism, and social distancing. The CDC has also provided a full summary table of recommendations for employers. 

DOL Guidance: Like the CDC Guidance, the DOL/OSHA guidance creates no new legal obligations, intended only as informal guidance.  The guidance focuses on “the need for employers to implement engineering, administrative, and work practice controls and personal protective equipment (PPE), as well as considerations for doing so.” The DOL guidance also provides general and specific guidance for workplaces.The general recommendations are similar to the CDC’s guidance. The DOL recommends that employers develop an infectious disease preparedness and response plan that adheres to federal, state, and local guidelines; implement good hygiene and infection control practices (e.g., handwashing protocols, flexible worksites/schedules, regular housekeeping cleaning schedules); and develop reporting policies. The DOL additionally recommends that employers mitigate risk along both engineering (e.g., installing high-efficiency filters) and administrative (e.g., developing staggered shifts) dimensions. The DOL guidance also reminds employers of their obligations under the General Duty Clause of the OSH Act. 

DOL’s guidance separates its specific recommendations by risk level: very high risk, medium, and low.  Both OSHA and CDC guidance emphasize the need for PPE for healthcare workers (designated a very high/high risk): they call for respirator masks (N95 or more protective versions), gloves, gowns, and face shields, as well as protocols for dealing with infected patients to minimize transmission.

Both agencies remind employers of their catch-all duty to provide safe workplaces, despite the voluntary nature of the guidelines. DOL specifically reminds employers that, when engineering and administrative controls “cannot be implemented or are not fully protective,” employers are required by OSHA standards to determine what PPE is needed for their workers’ specific job duties, select and provide appropriate PPE to the workers at no cost, and train their workers on its correct use.”

State Responses to COVID-19

Virginia’s provisions apply to all employers and employees in the state. The additional requirements are housed in the Virginia Occupational Safety and Health (VOSH) and supplement existing state regulations. The guide assigns risk levels to employers, with different protocols for each risk level. The definition for each risk level is as follows: 

Very High

High 

Medium 

Lower

Potential exposure to known/ suspected COVID virus. E.x. lab samples. Or contact with people infected or suspected to be infected with COVID (e.x. Medical, postmortem, etc. including tasks such as intubation or those involving aerosolized particles 

Exposure within 6 feet of known/suspected COVID contagion. 

E.x. physical/mental health (field hospitals, docs, nurses, cleaners)

Nonmedical services e.x. Physical support

First responders

Medical transport

mortuary

“More than minimal contact” with employees and other people within 6 feet, but not known/ suspected to have COVID e.x. Meat processing, air transport, educational settings

Minimal contact. Installation, Staggered shifts, Telecommuting, etc. 

Employers who comply with CDC requirements that are at least as strict as VOSH requirements are in compliance with VOSH guidance. Higher ed institutions are compliant if they follow guidance developed by the Governor’s Office and Virginia Department of Health.  

All employers, regardless of risk level must comply with the following requirements:

  • Classify each work-related task by risk level.
  • Implement testing and positive test reporting procedures.
  • Implement a system for employees to report if they have symptoms of COVID-19.
  • No employee can work if they are suspected to be infected with COVID-19.
  • Employer development of flexible sick leave policies.
  • Return to work procedures after possible exposure (time or test-based procedure).
  • Procedures to ensure distancing. Breakroom and common area access must be controlled .
  • All employees must wear PPE when in a vehicle together or in close proximity with others.

California provides general guidance through a COVID-19 Employer Handbook. The state also has regulations for each industry.  Business operating requirements are based on county transmission and risk level using a color-coded system ranging from yellow minimal spread) to purple (widespread.) Each employer must conform to the following rules, which can be tailored based on industry:

  • Develop a risk assessment and prevention plan.
  • Implement COVID-19 training specific to the employer’s field.
  • Screening employees for COVID-19 and virus exposure.
  • Disinfection procedures.
  • Enforcement of physical distancing.
  • Mask/ covering requirements must be universal.

Employers must also develop case identification, case tracking and return-to-work policies conforming to the following guidelines:

  • Return to work guidance for symptomatic positive and negative employees as well as asymptomatic positive employees, including quarantine times and testing procedure.
  • Case identification procedure, a requirement to stay home if an employee is symptomatic, tracking plan and reporting to the local health department (LHD).
  • Clarify company and state paid leave policies, including special provisions in response to the pandemic. Information on California’s paid leave policy can be found on NCSL’s Family Medical Leave page. 
  • Control of a potential outbreak via testing or, if not available, other procedures

Finally, all employers must implement stringent cleaning procedures, which also vary based on industry. Cleaning procedures include sanitizing frequently touched surfaces, not sharing personal workplace equipment such as headsets and employee training on proper cleaning procedure. 

Oregon provisions include requirements for all employees (section 3 of the linked document) and special additional requirements for workplaces with “exceptional risk” of COVID-19 exposure (section 4 of the linked document.) Exceptional risk workplaces are those in which the employee has direct patient contact, including care/ decontamination in a healthcare building, aerosol-generating healthcare/ postmortem, residential care/ assisted living, in home care, first responder, or “personal care” with an individual such as bathing and handling human remains or tissue. Some section 3 requirements for all employers include: 

  • Physical distancing for all employees (at least six feet apart). Exceptions exist only in cases where the employer shows it is not possible to do so.
  • Mask/ facial covering required for all employees, with some small exceptions, except when outdoors and when six feet of distancing is possible.
  • Sanitation of all common/high touch/ shared equipment. Employers must provide sanitation supplies. Areas are cleaned one to two times in a 24 hours period, depending on frequency of use. 
  • Post the COVID-19 hazards poster and facial covering requirements.
  • Employer must inspect and maintain HVAC and air filtration systems as required by the manufacturer.
  • Employers must perform an exposure risk assessment and allow for employee feedback.
  • Establish an infection control plan.
  • Employee training on transmission and COVID-19 symptoms.
  • COVID infection, notification and quarantine procedures.

In addition to Section 3 requirements, exceptional risk workplaces must adhere to the following procedures:

  • Employers must provide infection control training including more advanced transmission information, behavioral (social) risk factors, performing exposure risk assessments, physical distancing and handling of masks/ PPE.
  • Implementation of a more stringent infection control plan.
  • Additional sanitation: 
    • Routine cleaning using soapy water first, then hospital-grade disinfectant.
    • Increased PPE requirements- hospitals must provide PPE. If there is a shortage of PPE, then the employer must follow OHA-Oregon and OSHA guidance on reusing PPE.
    • Implementation of a screening and isolation procedure.

Finally, the Oregon OSHA website includes updates on additional requirements as they develop. The site also includes industry-specific information and information on continuing traditional, non-COVID-19 related safety training. 

Additional Resources

For further questions about taking leave under the FFCRA, the Department of Labor has provided an FAQ for employees: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions