Assessing and Controlling Employee Exposure to Infectious Agents (Regulatory Standards CE)

The Occupational Safety and Health Administration (OSHA) requires employers covered under the OSH Act to provide a workplace free of hazards, and that includes infectious diseases. To provide guidance, OSHA publishes standards and methods that employers can use to control these types of hazards. During the SARS-CoV-2 pandemic, employers have had to stay abreast of not only OSHA's emergency temporary standards but also guidance from the Centers for Disease Control and Prevention (CDC).

Question: Because there is no OSHA standard for infectious diseases, other than the Bloodborne Pathogen Standard, what is OSHA using to cite an employer who is not taking adequate preventive actions to protect their workers from SARS-CoV-2?

Legal Perspective: Primarily, OSHA has been citing employers for violations relating to SARS-CoV-2 using the OSH Act General Duty Clause. Under the General Duty Clause, employers are required to provide a place of employment that is "free from recognizable hazards that are causing or likely to cause death or serious harm to employees." Violations of the General Duty Clause can result in OSHA issuing citations similar to those issued for violations of any of its standards.¹

Whether the hazard is infectious diseases or slips, trips, or falls, an employer must assess the hazards in their workplace and take corrective actions to implement controls for the protection of their workers. The following information is provided to assist an employer with the development of a health and safety program.

Conduct a Hazard Assessment

To begin the preparation of a health and safety program, an employer must conduct a hazard assessment. The individual or individuals who perform that assessment must be knowledgeable of the tasks that are performed in the facility. The hazards in a dental laboratory will vary depending on the business model. Dental laboratory functions can range from an importer model with minimal production activity to a full-service dental laboratory. The technology in use at the dental laboratory also can range from minimal scanners, printers, and mills to expansive operations with large CAD/CAM departments. All the functions and tasks in the dental laboratory must be assessed in order to identify the hazards and then implement controls to eliminate or minimize the hazards.

The hazards to assess include but may not be limited to:

• Chemical hazards. Review the SDS and product labels for each product used in the laboratory to identify where there could be exposure of concern.

• Physical hazards. Identify exposures to excessive noise, elevated heat, or sources of radiation.

• Biological hazards. Are workers exposed to sources of infectious diseases, molds, etc?²

• Ergonomic factors. Examine work activities that require heavy lifting, work above shoulder height, repetitive motions, or tasks with significant vibration.

Question: What are the potential consequences of an employer identifying COVID-19 as a hazard but not acting to eliminate or minimize it?

Legal Perspective: Because of the risk of becoming infected with COVID-19, OSHA investigators have not been conducting as many onsite inspections and investigations of workplaces as they have in the past. Instead, OSHA sends letters to employers asking them to respond to questions related to specific safety and health issues or areas of concern. Employers are responsible for conducting an inspection or a self-audit based on the letter from OSHA and providing a written response, including documents relevant to the inquiry. The employers' main objective is to validate compliance with safety and health standards and requirements. It is important to note that OSHA can use information provided by employers in response to its letters as a basis to issue citations. Consequently, careful review or, better, review by a qualified person such as an attorney with experience in safety and health matters is prudent to minimize the likelihood of citations and to maintain the confidentiality of communications through the attorney-client privilege. As the risk of infection has diminished, OSHA investigators are conducting more onsite inspections and investigations. Regardless of the type of inspection or investigation conducted, OSHA will determine whether a violation occurred. With respect to the general industry, OSHA currently does not have a specific standard covering COVID-19. Instead, OSHA cites the General Duty Clause when violations are found.

Eliminate or Minimize Hazards

The next step is to develop a plan to eliminate or minimize the hazard. OSHA provides a hierarchy of controls that emphasizes engineering solutions first, followed by safe work practices, administrative controls, and finally personal protective equipment.³

Engineering Controls

Through engineering controls, a hazard can be controlled at its source. These controls can be accomplished through the design of the facility, equipment, or a process that will remove the hazard or provide a substitute that is not hazardous. This type of control could also include enclosing the hazard, such as with a sandblasting cabinet that has suction. If enclosing the hazard is not feasible, then barriers or local ventilation can be installed to reduce the exposure. Barriers and physical distancing have been used by many employers for the protection of their workers during the COVID-19 pandemic.

Administrative Controls

If engineering controls do not eliminate or minimize the hazard, then administrative controls can be considered. These controls are aimed at reducing employee exposure to hazards through changing the way that people work. Due to COVID-19, an example in a dental laboratory has been to reduce the number of workers at the laboratory at the same time by adding work shifts. Another example in dental laboratories has been quarantining cardboard shipping boxes for 2 to 3 days after receipt from a dental client.

Personal Protective Equipment (PPE)

PPE is the last resort to consider as a supplementary method of control. Face masks have been effective in preventing exposure in the workplace. Some employers have required respirators in some instances to provide the best protection to their workers. This has required compliance with OSHA's Respiratory Protection Standard, which requires fit testing and medical questionnaires.

Confirm Controls are Effective

A critical part of establishing the controls described above is training workers on how to use the controls and also tracking, inspecting, and evaluating the controls once they are in place. Workers should be involved in the evaluation of these controls. This follow-up could include the following:

• Conduct regular inspections to confirm that the controls are being used correctly and consistently.

• Evaluate the control measures to determine if any modifications or additional training are necessary.

• Create preventive maintenance schedules and ensure that workers are performing the preventive maintenance as scheduled to keep the equipment operating safely.

Question: What should an employer and employees do when it comes to following safety rules for protection from SARS-CoV-2?

Legal Perspective: First, employers should conduct an assessment of risks and hazards for every job in the workplace, including the risks and hazards associated with and related to SARS-CoV-2. Second, employers should review SARS-CoV-2 guidance and recommendations from federal OSHA or state OSHA (as applicable), the CDC, and state and local health authorities. Third, employers should evaluate the risks and hazards based on the guidance and recommendations and determine actions that can be taken to abate or mitigate the risks and hazards. Fourth, employers must determine the feasibility of implementation of the actions. Obtaining feedback and input from employees can assist employers in determining the actions that can be effectively implemented. Lastly, employers should inform employees about the assessment and the actions that will be implemented, and address any questions employees may have. It is important to allow employees an opportunity to ask questions because, if the situation is properly handled, the likelihood of compliance will increase. It is also important that employers enforce SARS-CoV-2-related as well as other work rules and discipline employees who fail to comply with them.

OSHA Inspections and Penalties

When work-related injuries and illnesses do happen, an employer may need to take steps to notify OSHA. Under the Federal OSHA plan, employers must report a work-related fatality to OSHA within 8 hours, and in most cases OSHA will follow up. If there is a work-related amputation, loss of an eye, or hospitalization of a worker, then the employer reports those injuries to OSHA within 24 hours.⁴ Some state plans have more stringent requirements for this reporting.

OSHA does conduct random inspections; however, the majority of inspections are generated by employee complaints. An employee complaint may or may not result in OSHA performing an onsite inspection. In many cases, a letter or email is sent to the employer, and the employer is provided a certain length of time to respond to OSHA stating what they have done to abate the issue or why that the issue was not legitimate.

If OSHA cites an employer and penalties are imposed on the employer, then the violation will be shown as Serious, Other-than-Serious, Willful, or Repeated. The following is OSHA's explanation of these types of violations:

• Willful: A willful violation is defined as a violation in which the employer either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety.

• Serious: A serious violation exists when the workplace hazard could cause an accident or illness that would most likely result in death or serious physical harm, unless the employer did not know or could not have known of the violation.

• Repeated: An employer may be cited for a repeated violation if the employer has been cited previously for the same or a substantially similar condition and, for a serious violation, OSHA's regionwide (see last page) inspection history for the employer lists a previous OSHA Notice issued within the past 5 years; or, for an other-than-serious violation, the establishment being inspected received a previous OSHA Notice issued within the past 5 years.

• Other-Than-Serious: A violation that has a direct relationship to job safety and health, but is not serious in nature, is classified as "other-than-serious."

Question: Which types of citations are the most prevalent when it comes to an employer being cited for not protecting their workers from infectious diseases like COVID-19?

Legal Perspective: Most citations issued by OSHA have been for violations of the General Duty Clause. OSHA has, however, issued citations for violations of specific standards such as those covering, for example, respiratory protection (1910.134), personal protective equipment (1910.132), and recordkeeping and reporting (1904). Depending on its investigation, OSHA may issue citations for a violation of any of its standards, even those unrelated to COVID-19. That is why it is important for employers to not forget that compliance with all applicable standards is still required and may be checked by OSHA during an inspection or investigation based on or related to COVID-19. There is no exemption from safety and health compliance requirements because of the pandemic. Employers are required to ensure a safe and healthy workplace free from recognizable hazards, including but not limited to the implementation and enforcement of work rules in relation to all standards applicable to the operations of the business.

If OSHA is not satisfied with the response from the employer, then it can result in an onsite inspection and penalties. Each year, OSHA increases the penalties. The penalties that were effective January 1, 2022, are listed in Table 1.⁵

OSHA can apply penalty factors based on these four factors:

• The gravity of the violation

• The size of the employer's business

• The good faith efforts of the employer

• The employer's history of previous violations

OSHA can also apply Penalty Adjustment Factors.⁶ According to OSHA, these adjustments will vary depending on the employer's "size," which is based on the maximum number of employees; "good faith;" and "history of previous violations." The adjustments can be:

• 10% reduction for history

• 25% reduction for good faith efforts

• 70% reduction for size

There are also limitations for penalty reduction factors. Penalties proposed for violations classified as repeated shall be reduced only for size. Penalties proposed for violations classified as willful shall be reduced only for size and history. Penalties proposed for serious violations classified as high severity/greater probability shall be reduced only for size and history.

Question: How does the "per violation" work when penalties are imposed by OSHA?

Legal Perspective: If OSHA discovers violations of the same standard, it can issue a separate citation for each violation under its "egregious violations" policy. The "egregious violations" policy was established by OSHA in the mid-1980s. OSHA investigators under this policy are instructed to cite employers for multiple violations of the same standard where they have demonstrated one or more of the following characteristics: (1) persistently high rates of injuries, illnesses, or fatalities; (2) extensive history of prior violations; (3) intentional disregard of safety or health responsibilities; or (4) bad faith (a plain indifference to safety and health standards or requirements). Application of this policy by OSHA investigators can result in substantial penalties-much higher than those that would be assessed under normal circumstances.

Closing Comments

This information is all presented in order to stress the importance of assessing the hazards in your workplace and taking the necessary steps to develop controls that will protect your workers. Of course, the process does not end there. Continuously monitoring and evaluating your controls is critical to providing a safe workplace.

About the Authors

Mary A. Bartlett
President
SafeLink Consulting Inc.
Cumming, GA

Tracy L. Moon Jr.
Partner
Fisher & Phillips
Atlanta, GA

References

1. OSH Act of 1970. United States Department of Labor website. https://www.osha.gov/laws-regs/oshact/section5-duties. Accessed April 15, 2022.

2. Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. United States Department of Labor website. https://www.osha.gov/coronavirus/safework. Accessed April 15, 2022.

3. Hierarchy of Controls. Centers for Disease Control and Prevention website. https://www.cdc.gov/niosh/topics/hierarchy/default.html. Accessed April 15, 2022.

4. 1904.39 - Reporting fatalities, hospitalizations, amputations, and losses of an eye as a result of work-related incidents to OSHA. United States Department of Labor website. https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.39. Accessed April 15, 2022.

5. 1903.15 - Proposed penalties. United States Department of Labor website. https://www.osha.gov/laws-regs/regulations/standardnumber/1903/1903.15. Accessed April 15, 2022.

6. Enforcement Memos: 2022 Annual Adjustments to OSHA Civil Penalties . United States Department of Labor website. https://www.osha.gov/memos/2022-01-13/2022-annual-adjustments-osha-civil-penalties. Accessed April 15, 2022.