This week, the DOL issued new COVID-19 specific FAQ’s intended to guide employers about the steps they can take during the pandemic to comply with the Occupational Health and Safety Act (“OSHA”). The FAQ’s address a variety of important topics, including cleaning and disinfecting protocols, training, and handwashing facilities. The FAQ’s also address dealing with a COVID positive test and the controversial topics of cloth face coverings.
On the issue of testing, the FAQ’s note that OSHA does not require employers to notify other employees if one of their coworkers gets COVID-19, but such notification may nevertheless be an advisable step to protect other workers from exposure to the virus that causes COVID-19. To that end, the FAQ’s recommend that workers tell their supervisors if they have tested positive for COVID-19 so that employers can take steps to protect other workers. Citing to the CDC Guidance for Business and Employers, the FAQ’s also suggest that after a confirmed positive case, employers determine which employees may have been exposed to the virus and inform employees of their possible exposure to COVID-19 in the workplace. The FAQ’s also note that in deciding exactly what and how they tell their workers about the potential exposure, they must maintain confidentiality of medical information. Additional safety steps in the case of a confirmed COVID case might also include cleaning and disinfecting, notifying other workers to monitor themselves for signs/symptoms of COVID-19, or implementing a screening program in the workplace (e.g., for signs/symptoms of COVID-19 among workers), and following CDC recommendations for when employees can return to work after having COVID-19.
On the issue of cloth face coverings, the DOL has taken the position again that employers are not specifically required to provide cloth face coverings to their workers. However, the FAQ’s note that employers may choose to require face coverings nonetheless. The strong implication is that cloth face coverages offer an effective way to protect employees from the “hazards” of COVID-19 and for the employer to fulfill the general duty under OSHA to provide a safe workplace. The FAQ’s also make a point to distinguish between cloth face coverings, which are not considered PPE, and surgical masks, respirators, and other face protection that are considered PPE required for certain industries under OSHA. As noted by the DOL, whether or not cloth face coverings are required by employers, they are NOT appropriate substitutes for PPE such as N95 respirators or medical face masks in workplaces where such respirators or face masks are recommended or required to protect the wearer.
What is clear from the FAQ’s is that the virus that causes COVID-19 is among the workplace hazards from which employers must protect their workers in accordance with OSHA, and while OSHA may not specifically require employers to screen employees, clean and disinfect, isolate sick employers, contact tracing for workplace exposure, and mandate cloth face coverings), these protocols are nevertheless useful steps to minimize transmission of the virus and keep the workplace safe in fulfillment of an employer’s OSHA obligations. The full set of FAQ’s can be found here.