Your employer must protect you from COVID-19 exposure in the workplace. An employer that does not take all feasible steps to protect you from this deadly virus is acting illegally and irresponsibly.
Depending on the type of work you do, your employer may be required to provide you with a modified workplace, Personal Protective Equipment (PPE), training on how to use it properly, instructions on what to do when it is worn or damaged, and proper methods for decontaminating PPE that is re-used.
The Occupational Safety and Health Act contains a “General Duty Clause” that requires employers to protect employees from any recognized hazards that are causing or likely to cause death or serious physical harm. The text of this clause is broad and covers a wide range of hazards in the workplace:
"Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
COVID-19 easily meets the definition of a recognized workplace hazard that is causing or is likely to cause death or serious physical harm. The question for most workers is: What is a feasible method to protect employees from this deadly hazard?
In this article, we describe some of the protections that should be adopted. If you have questions about specific protections that may be required in your workplace, call us at (212) 601-2728 to schedule a consultation.
Minimum Health and Safety Protections
The precautions an employer must take depend on the type of work and the risk of transmission.
Healthcare workers and first responders are in the high- and very high-risk categories. Retail jobs where there is frequent interaction between people, but no known cases of infection, are in the medium risk category. Jobs where there is little or no contact with co-workers and members of the public are considered low-risk jobs.
Every employer should take some basic steps to protect all employees from COVID-19 exposure. This may require work space changes to allow for social distancing, whether by rearranging the work space, using physical barriers, or allowing employees to work from home. It may also require frequent use if disinfectants to clean the workplace, closing common areas such as break rooms, or limiting access to one person at a time in restrooms.
Personal Protective Equipment Requirements
When social distancing cannot be maintained, your employer should provide PPE that is safe and effective. This means not only providing the PPE itself, but also providing instructions on how to use it, instructions on what to do when it becomes worn or damaged, and proper methods for decontaminating PPE that is re-used.
The type of PPE required will depend on the nature of your work, the risk of infection, and the type of equipment that is feasible under the circumstances. OSHA's PPE standards require using gloves, eye and face protection, and respiratory protection when job hazards warrant it.
When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program. For example, healthcare workers who have direct contact with potentially infected patients should be given a filtering facepiece respirator (FFR). The employer must train employees on the procedures for the sequence of donning and doffing the respirator to prevent self-contamination. The employer must also ensure that employees perform a user seal check every time they don the FFR. If the employee cannot perform a successful user seal check, then the employer should not allow the respirator to be used.
OSHA allows FFRs to be reused, but only when no acceptable alternatives exist and only with proper decontamination. FFRs may be decontaminated with vaporous hydrogen peroxide, ultraviolet germicidal irradiation, and/or moist heat such as an oven. Microwave-generated steam or liquid hydrogen peroxide may be used only if no other methods are available. The employer must visually inspect, or ensure that employees visually inspect, the FFRs to determine if the structural and functional integrity of the respirator has been compromised by the decontamination process.
Reporting Health and Safety Violations
When it comes to health and safety risks in the workplace, COVID-19 is as serious as it gets. If your employer is not providing a safe workplace, then you should not hesitate to raise your concerns.
Notify your employer of your concerns immediately. Make a formal complaint, in writing or by email so you have a record. Your employer is required to investigate and take corrective action. They are also prohibited from retaliating against you. If you are a union member, also notify your union representative.
File a complaint with OSHA. The agency has made clear that it will act quickly and with vigilance to investigate COVID-19 related health and safety violations, especially those involving healthcare and emergency response employers. For more information on OSHA requirements and how to file a complaint, go to https://www.osha.gov/SLTC/covid-19/standards.html
The New York State Department of Labor may also be able to help you with other types of COVID-19 workplace concerns. You may file a complaint in New York for any of the following reasons:
Questions? Call us at (212) 601-2728 to schedule a consultation.
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John Howley, Esq.
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New York, New York 10118