Even though the US Supreme Court struck down the vaccination or testing requirement, employers still face enforcement through other standards.
by Pete Chaney
AWCI Director of Safety, Health & Risk Management
The U.S. Supreme Court’s decision to stay the COVID-19 Emergency Temporary Standard (ETS) makes it more difficult for OSHA to issue citations. However, the agency is still emphatic about enforcing COVID-19 safety in the workplace. OSHA is not currently performing random COVID-19 inspections in the construction industry, but the agency is emphasizing enforcement in all workplaces where COVID-19 spreader events occur. If a spreader event occurs on one of your job sites, be prepared so that you can avoid an OSHA citation. So far, since the Supreme Court’s decision, OSHA has received 551 COVID-19–related complaints in the construction industry and performed 48 inspections on construction job sites.
OSHA compliance officers are leaning heavily on two sources to justify issuing citations: Section 5(a)(1) of the OSH Act (General Duty Clause), and the agency’s respiratory protection standard.
General Duty Clause
This clause in the OSH Act essentially states that each employer shall provide a place of employment that is free from “recognized hazards.” The agency typically uses the clause to issue citations when there are no existing standards addressing what it perceives to be a “recognized hazard.” OSHA can use a number of sources to help it justify its claim that a hazard should have been recognized by an employer, such as national industry consensus standards and guidance from reputable agencies like the CDC. For example, OSHA has already issued 25 General Duty Clause citations to employers for not following CDC guidelines on COVID-19. To help avoid receiving a General Duty Clause citation, make sure your company complies with the CDC’s most current guidance on COVID-19.
To comply with the CDC’s latest COVID-19 guidance you will need to determine what level of COVID-19 exposure you have in the county or counties where you work. The COVID-19 level for each county in the United States is established by the CDC and updated weekly. The levels are determined by the CDC to be low, medium or high based on the number of hospital beds being used, hospital admissions and the total number of new COVID-19 cases in the area. The current CDC guidelines for each level are as follows.
Current Guidance for Each Level
- Stay up-to-date with COVID-19 vaccines; and
- Get tested if you have symptoms.
- If you are at high risk for severe illness, talk to your healthcare provider about whether you need to wear a mask and take other precautions;
- Stay up-to-date with COVID-19 vaccines; and
- Get tested if you have symptoms.
- Wear a mask indoors in public;
- Stay up-to-date with COVID-19 vaccines;
- Get tested if you have symptoms; and
- Additional precautions may be needed for people at high risk for severe illness.
Respiratory Protection Standard
OSHA is currently citing employers whose employees are required to wear respirators for protection against COVID-19. The citations are predominantly for:
- Improper respirator use;
- Absence of medical evaluations for respirator users; and
- Failure to perform fit testing.
If your workers are performing work in a facility where respirators are required, make sure your company complies with OSHA’s respiratory protection standard, especially the respirator use, medical evaluations and fit-testing requirements.
The following is a summary of key parts of OSHA’s respiratory protection standard addressing respirator use, medical evaluations and fit-testing. Please keep in mind that it is only a summary. Be sure to read and comply with OSHA’s entire respiratory protection standard before implementing a respiratory protection program.
Summary of Key Parts of OSHA’s Respiratory Protection Standard
Respirator Use / Medical Evaluations / Fit-Testing
Use of Respirators: Employers must establish and implement procedures for proper use of respirators.
- Workers must not use tight-fitting respirators when facial hair interferes with the seal;
- Workers with conditions that prohibit good seals and/or valve function must not use respirators;
- Corrective glasses and Personal Protective Equipment (PPE) must be worn in a manner that will not interfere with the seal;
- Workers must perform a user seal check each time they don a respirator;
- Changes in conditions or worker exposures require reevaluation of respirator effectiveness;
- Workers must leave the use area to wash their faces and respirators to prevent skin irritation;
- Workers must leave the use area when they detect gas or vapor breakthrough;
- Workers must leave the use area when changes in breathing resistance occur;
- Workers must leave the use area when there is leakage in the face-piece;
- Workers must leave the use area to replace respirators, filters, cartridges or canisters;
- Respirators must be repaired or replaced before workers can return to the use area; and
- Requirements for respirator use in environments that are immediately dangerous to life and health (IDLH) are specialized (refer to the regulation).
Fit-Testing: Employers must fit-test all workers required to wear respirators with tight fitting face-pieces. A fit-test must be passed with the same make, model, style and size respirator that the worker will be using.
- Fit tests must be performed prior to use, when a different respirator is to be used, and annually;
- Fit-tests must be performed when physical changes to a worker would affect the fit, such as facial scarring, dental work, cosmetic surgery, weight gain or loss, etc.;
- Workers whose respirators are unacceptable must be allowed to try different respirators;
- Fit-tests must be qualitative or quantitative depending on the type and use of the respirator;
- OSHA accepted protocol must be used for all fit-tests; and
- Fit-testing is complex and takes time. User seal checks are not fit tests.
Medical Evaluations: Employers must provide medical evaluations to determine whether their workers are physically able to use respirators. Employers must identify a physician or licensed health care provider (PLHCP) to perform the medical evaluations.
- Medical evaluations must be done before workers are fit-tested;
- Employers can stop medical evaluations when workers no longer have to use respirators;
- Either the medical questionnaire in Appendix C of the standard or a medical exam must be completed;
- A follow-up exam is required if any of the medical questionnaire questions 1 through 8, Part A in Section 2 are answered yes;
- A follow-up exam is required if an initial medical exam demonstrates the need;
- Follow-up exams include medical tests, diagnostic procedures and/or other procedures;
- Evaluations and their results must be kept confidential;
- Evaluations must be done during working hours or at a time convenient to workers;
- Workers must be able to discuss the results with the PLHCP;
- Supplemental information must be given to the PLHCP before the final analysis of workers;
- Supplemental information includes type and weight of respirator, and the duration and frequency of use;
- Supplemental information must also include expected physical work and any other required PPE;
- Temperature and humidity extremes must also be included in the supplemental information;
- Employers must get written recommendations from the PLHCP regarding evaluated workers;
- Recommendations must include limitations of any workers, need for follow up exams; and
- Each worker must receive a copy of the PLHCP’s written recommendations.
OSHA is currently working to update its own guidance for worker protection against COVID-19. AWCI will keep you informed about it and provide you with a summary immediately after the guidance becomes available. If you have any questions, contact AWCI’s Pete Chaney at firstname.lastname@example.org or (304) 261-4310.
Pete Chaney is AWCI’s Director of Safety, Health & Risk Management. He is a member of the American Society of Safety Professionals, the National Fire Protection Association and the National Safety Council. Chaney also holds the Certified Safety Professional (CSP) designation from the Board of Certified Safety Professionals.