OSHA has revealed the criteria it relies on to target employers for COVID-19 investigations along with naming those who received citations and the penalties they were assessed. The agency also recently issued a new COVID-19 guidance for employers addressing ventilation standards they should adopt for their workspaces.
OSHA has come under intense criticism this year, particularly from labor unions, for relying on the General Duty Clause to support enforcement actions after declining to create Emergency Temporary Standards (ETS). The criticism also has come from politicians such as President-elect Joe Biden and Gov. Ralph Northam of Virginia.
Recently, a 7,000-word screed was published in the pages of the New Yorker magazine, which later required several serious corrections, which charged that the agency has not done enough to protect workers by failing to go after employers.
OSHA recently reported that since the start of the coronavirus pandemic and up through Nov. 5, it has issued 203 citations arising from inspections for violations relating to the Coronavirus, resulting in penalties which have totaled $2,851,533.
With only a few exceptions, the most recent citations have involved various kinds of medical facilities, including hospitals. The grand total includes citations issued earlier this year for a meatpacking plant and additional medical facilities.
On Nov. 6, OSHA issued a guidance summarizing which safety standards the federal agency most frequently cites during COVID-related inspections These are examples of requirements it says employers most frequently fail to follow:
• Provide a medical evaluation before a worker is fit-tested or uses a respirator.
• Perform an appropriate fit test for workers using tight fitting respirators.
• Assess the workplace to determine if COVID-19 hazards are present, or likely to be present, which will require the use of a respirator and/or other personal protective equipment (PPE).
• Establish, implement and update a written respiratory protection program with required worksite-specific procedures.
• Provide an appropriate respirator and/or other PPE to each employee when necessary to protect the health of the employees (ensuring the respirator and/or PPE used is the correct type and size).
• Train workers to safely use respirators and/or other PPE in the workplace and retrain workers about changes in the workplace that might make previous training obsolete.
• Store respirators and other PPE properly in a way to protect them from damage, contamination, and, where applicable, deformation of the facepiece and exhalation valve.
• For any fatality that occurs within 30 days of a work-related incident, report the fatality to OSHA within eight hours of finding out about it.
• Keep required records of work-related fatalities, injuries and illness.
The guidance lists available resources and information to assist in complying with each of the above requirements.
The guidance also notes that, in light of the essential need for respirators during the COVID-19 pandemic, “OSHA has temporarily exercised some enforcement discretion regarding respirators, including certain fit testing provisions, the use of respirators that are beyond their manufacturer’s recommended shelf life, extended use and reuse of respirators, the use of alternative respirators certified under standards of certain other countries and jurisdictions, and decontamination of respirators.”
However, the agency emphasizes that this enforcement discretion applies only after an employer has considered and taken all possible steps to comply with measures in a particular control strategy.
Guidance on Ventilation
Around the same time it issued these reports about its enforcement activities, OSHA chose to published a new guidance on ventilation.
OSHA recommends that employers work with heating, ventilation and air conditioning (HVAC) professionals to look at ways to improve building ventilation as a way to address the potential hazard of exposure to COVID-19. In addition, it stresses that an HVAC professional can make sure that the ventilation system is operating as intended.
“Enclosed spaces with poor ventilation and air flow can make it more likely for employees to be exposed to potential infection,” attorney Raymond Perez II of the Jackson Lewis law firm points out. “Studies have also shown that infected droplets can travel farther in areas that are not well ventilated.”
The agency reminds employers that following these tips can help reduce the risk of exposure to the Coronavirus:
• Encourage workers to stay home if they are sick.
• Ensure all HVAC systems are fully functional, especially those shut down or operating at reduced capacity during the pandemic.
• Remove or redirect personal fans to prevent blowing air from one worker to another.
Use HVAC system filters with a Minimum Efficiency Reporting Value (MERV) rating of 13 or higher, where feasible.
• Increase the HVAC system’s outdoor air intake. Open windows or other sources of fresh air where possible.
• Be sure exhaust air is not pulled back into the building from HVAC air intakes or open windows.
• Consider using portable high-efficiency particulate air (HEPA) fan/filtration systems to increase clean air, especially in higher-risk areas.
• When changing filters, wear appropriate PPE. The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) recommends using N95 respirators, eye protection (safety glasses, goggles, or face shields), and disposable gloves.
• Make sure that exhaust fans in restrooms are fully functional, operating at maximum capacity, and are set to remain on.
• Encourage workers to report any safety and health concerns.