By Shari L. Solomon

The Occupational Safety & Health Administration (OSHA) is tasked with preventing worker-related injuries and illnesses. OSHA’s sole focus is the employer-employee relationship, i.e., is the employer adequately protecting the employee from potential work-related hazards. Clearly, these requirements apply to the prevention of occupational exposure to SARS-CoV-2. 

Among the most relevant regulations, Respiratory Protection, Personal Protective Equipment and Recording and Reporting Occupational Injuries and Illnesses. In addition, the OSHA General Duty Clause, which requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm, is considered a catch-all for OSHA enforcement in lieu of specific regulations surrounding SARS-CoV-2. 

In late 2020, in order to assist employers with compliance, Federal OSHA issued a document intended to help employers understand which OSHA standards have been cited most frequently during COVID-19 related inspections. The document, titled Common COVID-19 Citations: Helping Employers Better Protect Workers and Comply with OSHA Regulations is focused on hospitals and healthcare, nursing homes and long-term care settings, and meat/poultry processing facilities. According to OSHA, by gaining a better understanding of which workplace hazards have most often been cited, employers can better ensure that they are adequately protecting their workers. The below standards and requirements are listed in order of the frequency by which they were cited by OSHA, as follows:

Respiratory Protection 

OSHA’s Respiratory Protection Standard (29 CFR § 1910.134) was identified as the most frequent federal OSHA standard cited. According to the standard, when respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program.

According to OSHA, the top violation was in regards to the medical evaluation component of the Respiratory Protection standard. The employer either failed to provide a medical evaluation before the worker was fit-tested or used a respirator, or the medical evaluation was missing required information. Violations surrounding improper fit testing was second, including non-performance of fit testing and/or fit testing using improper protocols. 

In adherence to the Respiratory Protection standard, employers must also establish, implement, or update a written respiratory protection program with worksite-specific procedures. Failure to do so was identified as the third most common violation under the standard. 

In addition, effective training, which is to be comprehensive, understandable, and recur annually, more often if necessary, must also be conducted. The employer must ensure that each employee could demonstrate knowledge of basic competencies under the standard. Improper training and information was determined to be the fourth top violation, according to OSHA.

Recording and Reporting Occupational Injuries and Illnesses

OSHA recordkeeping requirements mandate that covered employees record certain work-related injuries and illnesses on their OSHA 300 log (29 CFR Part 1904). COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. Of note, however, employees are only responsible for recording cases of COVID-19 if all of the following are true:

• The case is a confirmed case of COVID-19
• The case is work related
• The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first aid, days away from work).

Citations regarding the employer’s failure to report a fatality to OSHA within eight hours after the death of any employee as a result of a work-related incident as well as the failure to keep records of fatalities, injuries, and illnesses that were work-related were identified as the second most cited regulation according to OSHA.

Personal Protective Equipment

OSHA's Personal Protective Equipment (PPE) standard (General Industry, 29 CFR 1910 Subpart I; Construction, 29 CFR 1926 Subpart E) requires using gloves, eye and face protection, and respiratory protection when job hazards warrant it.

In accordance with Section (d), hazard assessment and equipment selection the employer shall: 

• Assess the workplace to determine if hazards are present, or are likely to be present, which require the use of PPE; 
• Select, and require the use of, appropriate PPE; 
• Communicate selection decisions to each affected employee; and, 
• Select PPE that properly fits each affected employee.
• Properly document in writing that the required hazard assessment had been performed.

When employers fail to do so, citations are incurred. Of note, these citations occurred in the healthcare sector and involved medical facemasks, faces shields, and gowns. 

In addition, citations were imposed under the PPE standard for the failure of the employer to provide, use, and maintain protective equipment in a sanitary and reliable condition as well as the employer’s failure to provide training to each employee who is required to use PPE. 

General Duty Clause

Under the general duty clause (OSH Act 5(a)(1)), employers must protect employees from COVID-19 hazards at the workplace by, for example, installing plastic barriers or ensuring social distancing. 

According to OSHA, citations were incurred because the employer did not furnish a place of employment that was free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. Violation of the general duty clause was identified as the fourth top citation for the healthcare industry.

Shari L. Solomon, Esq. is president and founder of CleanHealth Environmental, LLC. CleanHealth provides infection prevention and industrial hygiene training and consulting services geared toward facility personnel and vendors responsible for infection prevention, cleaning and disinfection, and facility operations and maintenance practices. Ms. Solomon possesses more than 20 years of environmental consulting and federal regulatory experience. An attorney by trade, combined with her experience in the industrial hygiene field with a focus on healthcare, Shari holds a unique expertise and understanding of liability prevention techniques, offering clients practical and valuable risk management solutions.