OSHA has no more expanded coronavirus direction for manufacturers

If manufacturers want to ensure they are doing what’s best to protect employees during this coronavirus crisis, they need to rely on OSHA guidance from March. Getty Images

If manufacturers are waiting on more exact guidance from the Occupational Safety and Health Administration (OSHA), they might be wasting their time. Current agency guidance might be all that’s coming.

Bill Miossi, a partner with the law firm Winston & Strawn, stated the obvious during a Metals Service Center Institute-sponsored webinar on May 26: “There are no regulations that bear directly on this subject.” With no distinct regulations governing how manufacturing companies should keep their employees safe, they are left on their own to do the right thing. Miossi said that OSHA’s mission statement might be the best reference for those looking for an idea of what the agency expects. It reads: “Employers have the responsibility to provide a safe workplace. Employers must provide their workers with a workplace that does not have serious hazards and must follow all OSHA safety and health standards.”

This calls for proactive steps, Miossi said. It also provides a hint as to what OSHA investigators might be looking for if they show up at a metal fabricator’s doorstep, which is beginning to happen more frequently as agency representatives fan out from hot spot activity to follow up on whistleblower complaints. Miossi said that early OSHA citations dealing with COVID-19 exposure have referenced the general duty clause of the Occupational Safety and Health Act of 1970, which applies to no particular hazard but does recognize that employees need protection from alleged hazards, striking a similar tone to OSHA’s mission statement.

In an attempt to force OSHA to take more specific action related to the coronavirus, the AFL-CIO filed a petition on May 18 with the U.S. Court of Appeals to compel OSHA to issue emergency rulemaking. The plaintiff suggested that thousands of workers were at risk of being infected because OSHA has not issued specifics about what employers are responsible for in terms of testing, disinfecting work areas, handling sick employees, and generally keeping employees safe.

U.S. Secretary of Labor Eugene Scalia has gone on the record as being satisfied with the “extensive” OSHA guidance issued in the early spring.

Where does that leave manufacturers? Miossi said it’s best to reference the OSHA guidance:

• Personal hygiene and facility cleanliness have to be stressed.
• Proper respiratory etiquette, such as coughing into the shoulder, and social distancing requirements need to be spelled out in communications and signage.
• Personal protective equipment should be supplied to employees, and training has to be offered to ensure that people know why they need to wear it and the proper way to use the equipment.
• A medical monitoring and quarantining plan for infected employees should be in place. Many manufacturers are using a short survey with basic questions (for example, “Do you have a cough?”) and a temperature scan to determine if employees are sick. If someone does have coronavirus symptoms or has a fever, these companies send the employee home immediately. If someone becomes sick at work, they are sent home, and the company has to enact its plan on how to deal with individuals the infected person may have come in contact with.
• A robust sick policy is necessary. Employees who are sick need to be encouraged to stay at home. One of the coronavirus outbreaks at a meat-packing facility was exacerbated by a bonus program that encouraged people to show up for work, no matter how sick they were.
• Engineering controls need to be in place. Can physical barriers be constructed where social distancing is difficult to enforce? Can enhanced ventilation assist in minimizing the spread of particulates?
• Administrative controls also are required. Has a task force been established, or is the existing safety committee on top of this issue?

Miossi warned that although OSHA inspectors have been tied up working hot spot investigations at places like meat- and poultry-processing facilities and nursing homes, they won’t be ignoring flare-ups in other industries or anonymous tips disclosing ways employers are falling short in their coronavirus containment efforts. If the inspectors do show up, they are likely to be interested in safety training efforts, recordkeeping of injuries and illnesses, and whether employees may have been retaliated against for possibly reporting concerns to OSHA.