OSHA Releases New Guidance to Aid Employers During Coronavirus Crisis

By Tracey Truesdale Sally Scott William Pokorny - Franczek PC

April 12, 2020

Over the past two weeks, the Occupational Safety and Health Administration (OSHA) has released a new poster, safety tips specific to retail workers, and updated guidance for employers that have mandatory respirator programs. These resources recommend prevention measures all employers can take, specific practices retail employers can employ, and selection and use of respirators and filtering facepieces by employers.

Coronavirus Safety Poster:  OSHA’s new poster lists steps employers can take to reduce the risk of employee exposure to coronavirus disease 2019 (COVID-19) in the workplace. The poster, which was released on April 6 and is available in English and Spanish, is recommended but not required.

The new poster highlights 10 infection prevention measures that OSHA says every employer can implement to protect workers’ safety and health during the COVID-19 crisis, including:

- Encouraging sick employees to stay home;
- Establishing teleworking and staggered work shifts;
- Discouraging employees from using other employees’ phones, desks and other work equipment; and
- Using EPA-approved cleaning chemicals with label claims against COVID-19.

Safe work practices for retail employees: On April 8, OSHA issued the first of what it says will be a series of industry-specific alerts outlining safety measures that employers can implement to protect employees working in pharmacies, grocery stores, big box stores and other retail establishments. These include:

- Using a drive-through window or offering curbside pick-up;
- Providing employees and customers with tissues and trash receptacles;
- Allowing employees to wear masks over their noses and mouths to prevent spreading the virus; and
- Practicing “sensible” social distancing, which could include opening only every other cash register, temporarily moving workstations to create more distance, and installing plexiglass partitions between employees and customers at checkout counters.

Interim guidance on respirator selection, use, and fit testing for mandatory respirator programs: On April 3 and 8, OSHA issued memoranda providing interim guidance on the selection and use of respirators certified in other countries and on annual respirator fit testing.  The guidance is specifically designated as temporary, adopted by OSHA in response to the shortage of N95 respirators and other filtering facepiece respirators (FFRs) due to the coronavirus pandemic, and both memoranda apply to those workplaces where respirator use is required. The April 3 memorandum contains a detailed list of non-NIOSH-certified respirators and FFRs from other countries that OSHA deems permissible, including KN95s, which were recently approved for domestic use by the Food and Drug Administration. The memorandum notes that where employers are using respirators or filters from other countries in lieu of NIOSH-certified equipment, “homemade masks or improvised mouth and nose covers” are to be used:

as a last resort (i.e., when no respirators or facemasks are available). Improvised masks are not personal protective equipment and, ideally, should be used with a face shield to cover the front and sides of the face. When this measure is the only resort, refer to the Centers for Disease Control and Prevention (CDC) guidance at www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/face-masks.html.

In its April 8 fit testing guidance, OSHA advises employers to assess their engineering controls, work practices, and administrative controls to identify any changes they can make to decrease the need for N95s and other FFRs, and also to consider temporarily suspending non-essential operations. Further, given the shortage of fit testing kits and test solutions, OSHA encourages employers to prioritize the use of fit testing equipment to protect employees who must use respirators for high-hazard procedures. The new guidance directs OSHA field offices to exercise enforcement discretion in investigating employer compliance with annual fit testing requirements in cases where the employer has made good-faith efforts to comply with the requirements of the Respiratory Protection standard (29 CFR 1910.134) and to follow the steps outlined in an earlier March 14 memorandum regarding respirator supply shortages.

Employers with questions about OSHA’s interim guidance and employee use of respirators and N95s should contact the authors of this post or any other Franczek attorney.