OSHA’s Current Stance on COVID-19 for Worker Exposure, Respiratory Protection, Illness Recording, and Medical Surveillance

By Jeremy Wherren, CSP, CHMM, CMQ/OE, Corporate Health and Safety Officer
This is Part 2 of a series intended to provide some practical guidance on worker safety and health and other workplace compliance practices to help you and your workplace get through these unprecedented times. Last week’s topic included compliance considerations with Home-Based Worker safety.

This week’s topic provides an update and perhaps some clarity regarding how the U.S. Occupational Safety and Health Administration (OSHA) is addressing workplace hazard assessment, and regulatory issues such as respiratory protection, recording work related illnesses, and medical surveillance required under several OSHA standards.

Worker Risk Assessment with COVID-19 Exposure
Prior to making decisions about how your workers are to be protected from COVID-19 exposure, it is important for each employer to conduct a risk assessment of its employees to understand the hazards and exposure potential. To assist employers, OSHA has issued guidance to assess the risk of occupational exposure to COVID-19. The level of risk depends on a variety of factors including industry type and the need for contact within 6 feet of potentially infected persons. To help employers determine appropriate precautions, OSHA divided job tasks into four risk exposure levels: very high, high, medium, and lower risk. Workers such as those in healthcare settings, first responders, mortuary workers, medical transport etc. may be characterized at the high or very high-risk levels due to their potential exposure to people infected with COVID-19.

OSHA states within the guidance that most American workers likely fall in the lower exposure risk (caution) or medium exposure risk levels. The guidance summarizes that medium exposure workers include those who may have contact with the general public (e.g., schools, high-population-density work environments, some high-volume retail settings), including individuals returning from locations with widespread COVID-19 transmission. Low exposure risk (Caution) jobs are those that do not require contact with people known to be, or suspected of being, infected with COVID-19 nor frequent close contact with (i.e., within 6 feet of) the general public. Workers in this category have minimal occupational contact with the public and other coworkers. Once the risks to your workers are understood, appropriate controls for safe work practices should be considered for use. Safety practices and controls for COVID-19 have been widely published by the U.S. Centers for Disease Control and a variety of governmental entities. In late March, OSHA published Guidance on Preparing Workplaces for COVID-19 to help employers make sufficient preparations for the work place.

Respiratory Protection
OSHA regulates respiratory protection in the workplace under 29 CFR 1910.134 for general industry, and the standard for the construction industry 29 CFR 1926.103 are identical to those set forth in the general industry standard. Since the onset of the COVID-19 pandemic in the United States, employers have had to face challenges in maintaining compliance with this standard. For example, non-healthcare workers may have had to wear N-95 filtering face piece respirators (FFRs) for other hazards (dusts etc.) before COVID-19 came along, but now these forms of personal protective equipment are hard to find due to market demand for the health care industry (and justifiably so). Public health and governmental entities have issued guidance or advisories for people to wear face masks in public to protect from the spread of the COVID-19 virus. In the past couple weeks, OSHA has issued some public announcements and guidance to help work-places cope with compliance to these issues. Before we dissect OSHA’s position, it’s good to understand what OSHA considers a face piece respirator versus a face mask.

What is a filtering facepiece respirator (FFR)? It is important to understand what an FFR is when applying the respiratory protection standard. An FFR removes contaminants from the air as a negative pressure particulate respirator with a filter as an integral part of the facepiece or with the entire facepiece composed of the filtering medium. Dust masks, including N95 masks, and types of surgical masks are types of FFRs. A home-made or other sewn face mask, although with similar design intent is currently not recognized as an FFR by OSHA.

What is OSHA’s position regarding the use of FFRs during the COVID-19 crisis? On April 3rd 2020, OSHA issued two enforcement memoranda which provides guidance for employers with workers exposed to other respiratory hazards impacted by the FFR shortage resulting from the response to the COVID-19 pandemic. Within those memos, OSHA has recognized that the COVID-19 pandemic has caused unprecedented shortages in PPE supplies and issued enforcement guidance to use of respiratory protection equipment certified under standards of other countries or jurisdictions to help employers legally order FFRs from different sources, this includes use of homemade masks recommended by the CDC as a “last resort” option. The other memo expanded use and reuse guidance of N-95 respirators to all work places.

On April 8th, 2020 OSHA issued another enforcement memo stating that OSHA will exercise enforcement discretion regarding fit-testing requirements of FFRs, such as N-95 respirators, to all work places through this public health crisis, previously this was only applied to the health care industry.

OSHA is now exercising discretion in the enforcement of the respiratory standard regarding the use of FFRs. It is important to recognize that OSHA expects all employers to make good-faith efforts through this public health crisis to comply with the requirements of the respiratory protection standard and to follow the steps provided in the enforcement memoranda.

Employer Responsibility for Recording COVID-19 Illnesses
On April 10th 2020, OSHA issued enforcement guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19). In this memo, OSHA maintains its policy that the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must record COVID-19 illnesses deemed work related in accordance with injury and illness recordkeeping requirements under 29 CFR 1904, and is exercising discretion to require other employers to make the same work-relatedness determinations, except where: there is objective evidence that a COVID-19 case may be work-related; and the evidence was reasonably available to the employer. OSHA is intending that this guidance will help employers not have to mitigate COVID-19 illnesses of an employee from community-based transmission circumstances. Employers required to log injuries and illness should continue to follow the requirements of 29 CFR 1904 in all other work related injury or illness situations.

Medical Surveillance
At the time of publication of this blog, OSHA has not issued out any enforcement guidance regarding an employer’s requirement to provide medical surveillance or clearances as required under several standards including the respiratory protection standard. This has left employers to balance decision making based on risks to maintain compliance with applicable regulations and monitoring of potential employee exposures in the workplace, with the risk of exposing an employee to COVID-19 transmission in a medical environment such as a hospital or clinic. I posed this question to OSHA through their online “Ask OSHA” portal, and they responded that OSHA is in the process of addressing many issues related to COVID-19 and they are collaborating with others on this issue and public guidance will be updated, as appropriate.

If your workplace is facing challenges in meeting the intent of OSHA standards such as respiratory protection please review the enforcement memoranda linked within this blog and frequently go to the OSHA COVID-19 website for regular updates on this matter. Should you require assistance interpreting how OSHA standards and the recent enforcement memoranda affect your business, or how to conduct risk assessments, Nobis Group is here to assist your business with such issues, please contact us anytime.

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