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April 14, 2020
OSHA addresses COVID-19 concerns

The Occupational Safety and Health Administration (OSHA) expanded guidance regarding shortages of N95 filtering facepiece respirators due to the COVID-19 pandemic. OSHA instructed field offices to exercise discretion when enforcing annual fit-testing requirements, as long as employers have made good-faith efforts to comply with requirements of the respiratory protection standard.

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OSHA previously issued enforcement guidance solely for healthcare facilities. The new guidance applies to all workplaces. COVID-19 is a respiratory disease caused by the SARS-CoV-2 virus first identified in Wuhan City, China, in December 2019.

OSHA also reminded employers that the Occupational Safety and Health Act of 1970 bars retaliation against employees who report concerns about their health and safety in the workplace. The agency also issued guidance for protecting retail industry employees during the pandemic.

When a particular respirator model is out of stock, a manufacturer may recommend the employer use a different model that fits similarly to a model used previously by employees. The agency instructed field offices to exercise enforcement discretion when an employer switches to an equivalent-fitting make/model/style of N95 or other filtering facepiece respirator without first performing an initial quantitative or qualitative fit test.

Most manufacturers produce multiple models of respirators that use the same basic head form for size/fit. Manufacturers may provide employers with a crosswalk, listing respirators with an equivalent fit.

Employers still must comply with initial fit-testing, maintenance, care, and training requirements of the respiratory protection standard. OSHA encouraged employers to prioritize use of fit-testing equipment to protect employees who must use respirators for high-hazard tasks or procedures.

Whistleblower protections

OSHA issued a statement reminding employers it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic. Acts of retaliation include demotions, denials of overtime or promotion, reductions in pay or hours, and termination.

“Employees have the right to safe and healthy workplaces,” Principal Deputy Assistant Secretary Loren Sweatt said in the agency’s statement. “Any worker who believes that their employer is retaliating against them for reporting unsafe working conditions should contact OSHA immediately.”

Workers have the right to file a complaint with OSHA online or by telephone if they believe their employer has retaliated against them for exercising their rights under the whistleblower protections enforced by the agency.

OSHA enforces the whistleblower provisions of more than 20 federal statutes protecting employees from retaliation for reporting violations of airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, securities, and tax laws, as well as workplace safety and health laws.

Retail guidance

OSHA issued an alert listing safety tips employers can use to help protect retail workers from exposure to the coronavirus. Suggestions for retail establishments include:

  • Encouraging workers to stay home if they are sick;
  • Routinely cleaning and disinfecting surfaces and equipment with Environmental Protection Agency-approved cleaning chemicals from List N or that have anticoronavirus label claims;
  • Providing employees and customers with tissues and trash receptacles;
  • Training workers in proper hygiene practices and the use of workplace controls;
  • Using a drive-through window or offering curbside pickup;
  • Recommending that workers wear masks over their nose and mouth to prevent the spread of 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 workstations.
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