Adele L. Abrams, Esq., CMSP
OSHA Issues Guidance on COVID-19 & Workplace Ventilation
On November 5, 2020, the federal Occupational Safety & Health Administration (OSHA) released new guidance to assist employers in ensuring “adequate ventilation throughout the work environment” in order to prevent the spread of occupational COVID-19. While this policy is not enforceable per se by federal OSHA, knowledge of the recommended “best practice” to reduce the recognized hazard of COVID-19 could be imputed to the employer if embedded in its own policies at certain locations (employer recognition), or if recommended by a trade association or other organization to which the employer belongs (industry recognition). This can result in citations of up to $134,937 per affected worker under OSHA’s General Duty Clause, even in the absence of an enforceable COVID-19 rule.
To date, federal OSHA has rejected calls by unions and congressional members to adopt an emergency temporary standard to address COVID-19. The US Court of Appeals similarly rejected a Petition for an emergency rule. It is expected that in the next administration, a COVID-specific rule could be enacted by OSHA, or the ongoing “infectious disease” rulemaking could come off the side-burner and be placed on a fast-track for adoption.
In addition to serving as guidance for employers in federal OSHA jurisdictions (or those in MSHA-regulated worksites), the new policy also adds specificity to the much vaguer ventilation provisions in some of the newly adopted or pending state OSHA ETS for COVID-19: Virginia, Michigan, and Oregon have enacted ETS; CalOSHA has an aerosol transmissible disease rule applicable to high risk medical and related employers, as well as a pending ETS that is COVID-specific.
Federal OSHA’s ventilation policy is not mandatory, but with the pending Administration changes, it could easily be incorporated into a future OSHA COVID ETS or a permanent infectious disease rule, such as the one that was close to completion at the end of the Obama administration. The guidance encourages employers are directed to work with HVAC professionals to consider steps to optimize building ventilation, regardless of business sector. The key steps recommended are:
• Ensure HVAC systems are fully functional, especially those shut down or operating at reduced capacity during pandemic
• Remove/redirect personal fans to prevent blowing air from one worker to others
• Use HVAC system filters with a MERV rating of 13 or higher (where feasible)
• Increase the HVAC system’s outdoor air intake, and open windows and fresh air sources where possible
• Use portable high-efficiency HEPA fan/filtration systems to increase clean air
• When changing filters, wear appropriate PPE (N95 respirator, eye protection, disposable gloves), and
• Make sure exhaust fans in restrooms are fully functional, operating at max capacity, and set to remain on.
For more information on COVID-19 workplace safety and health, or compliance guidance, contact Adele Abrams at firstname.lastname@example.org.