By Hannah Kaufman Joseph, Jeselskis Brinkerhoff and Joseph LLC
Given the rapid and intense escalation of the COVID-19 pandemic, employers and employees are faced with new problems, risks, and hazards in the workplace. Far too many of our devoted healthcare providers are dealing with the frightening consequences of the widespread shortages of personal protective equipment (PPE). Individual health workers may be particularly impacted by the current crisis and it can be challenging in this chaotic climate to identify and understand the legal protections that may apply to your situation.
Unfortunately, there are currently no OSHA standards specific to COVID-19. However, some of the existing OSHA requirements are applicable in the current situations that healthcare workers may be facing in their workplaces, including:
- PPE is equipment worn to minimize employees’ exposure to hazards that cause workplace injuries or illnesses. These injuries or illnesses may result from contact with, among other things, physical or workplace hazards. OSHA’s current PPE standards (29 C.F.R. § 1910 Subpart I), require the use of gloves, eye and face protection, and respiratory protection. Specifically, “Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.” See 29 C.F.R. § 1910 Subpart I.
- If respirators are required to protect employees, the employers must adhere to the Respiratory Protection Standard (29 C.F.R. § 1910.134) and must implement a comprehensive respiratory protection program when employees must wear respirators to protect against workplace hazards.
- To comply with OSHA’s Respirator Protection Program, employers must:
- Identify and evaluate hazards;
- Develop a written program;
- Properly select respirators;
- Evaluate respirator use;
- Correct respirator use problems;
- Conduct medical evaluations and fit testing;
- Provide maintenance, storage, and cleaning of respirators;
- Provide training; and
- Provide access to records and documents related to the employers Respirator Protection Program.
- There are two main respiratory hazards that require respirators in the healthcare settling: airborne infectious agents and gaseous chemical exposures. Airborne infectious agents include any airborne transferable diseases, like COVID-19.
- Surgical masks are not the same as respirators for purposes of the Respirator Protection Program. Respirators are personal protective equipment designed to reduce exposure to airborne contaminants such as COVID-19.
- In response to COVID-19, OSHA has issued temporary guidance related to the enforcement of respirator annual fit-testing requirements for healthcare
- This guidance was released by OSHA on March 14, 2020 relaxing the annual fit-testing requirements to conserve the limited supply of N95 facepieces. However, healthcare employers remain obligated to meet established requirements such as ensuring workers use appropriate NIOSH-certified respirators and performing initial fit- testing.
- The full OSHA guidance is available here.
- The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (“OSH”), 29 U.S.C. § 654(a)(1), requires employers to furnish each worker with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
OSHA Complaints and Investigations
UNDER FEDERAL LAW, EMPLOYEES ARE ENTITLED TO A SAFE WORKPLACE AND EMPLOYERS ARE REQUIRED TO PROVIDE EMPLOYEES WITH A WORKPLACE FREE OF KNOWN HEALTH AND SAFETY HAZARDS.
Through OSHA, employees can file health and safety complaints if they are concerned that their working conditions are either unsafe or unhealthful. Doing so will trigger an investigation into the employee’s working conditions.
Employees also have the right to the following:
- The right to be trained in a language that the employee can understand;
- Work on or with machines and equipment that is safe;
- Be provided with safety gear, such as gloves and masks;
- Request an OSHA inspection;
- To speak to the OSHA investigator assigned to the employee’s complaint;
- Report an injury or illness;
- Have copies of their medical records;
- See copies of the workplace injury and illness log;
- Review the records of the work-related injuries and illnesses; and
- Obtain copies of test results done to find hazards in the workplace.
EMPLOYEES HAVE THE RIGHT TO SPEAK UP AND REPORT CONCERNS TO THEIR EMPLOYERS REGARDING HEALTH OR SAFETY WITHOUT FEAR OF RETALIATION. EMPLOYEES CAN ALSO FILE A WHISTLEBLOWER COMPLAINT (AS EXPLAINED IN GREATER DETAIL BELOW) IF THEIR EMPLOYER FIRED, DEMOTED, TRANSFERRED, OR OTHERWISE RETALIATED AGAINST THEM FOR EXERCISING THEIR RIGHTS TO A SAFE WORKPLACE UNDER THE LAW.
Complaint Procedures and Requirements
SAFETY AND HEALTH HAZARDS COMPLAINTS:
- Employees can complete the online form found here; or
- Employees can complete the complaint form or letter and then fax, mail or email it to the local OSHA office. Employees should include information regarding the type of business, a description of the hazard, the location of the hazard, whether the condition has been brought to the employer’s attention or a government agency, and whether a current employee, former employee, member of the federal safety and health committee, a representative of employees, or some other related party. Contact information for local OSHA offices can be found here. Please make sure that you include your name, the establishment name (i.e. your employer), your mailing address, the employer’s address, your email address, and your telephone or fax number.
- Complete the online form found here; or
- Fax, Mail, or Email: print a copy of the completed online whistleblower complaint form or draft a letter describing the complaint and the events surrounding the complaint and send it to the local OSHA office which can be found here. Employees should include their name, mailing address, email address, and telephone or fax number so that the OSHA office can contact them directly for follow up.
WHISTLEBLOWER COMPLAINTS MUST BE FILED WITHIN THIRTY (30) DAYS OF THE ALLEGED RETALIATION.
OSHA has responded to the COVID-19 outbreak with a new webpage dedicated to, among other things, hazard recognition, medical information, standards, control and prevention, and workers’ rights. The webpage is available here.
Local OSHA offices can be contacted at https://www.osha.gov/contactus/bystate or 800-321-6742 with questions about the complaint process or a specific complaint.
There are also twenty-eight OSHA-approved State Plans, operating state-wide occupational safety and health programs. The list of states that have been approved and links to their respective Safety and Health Standards and Regulations can be found here.
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