Law360 (July 6, 2020, 4:49 PM EDT) — The U.S. Department of Labor on Thursday published a set of frequently asked questions to help keep people safe from COVID-19 as they return to workplaces, including recommending that employees wear masks.
Among the recommendations the Occupational Safety and Health Administration unveiled last week, the agency advises that “employers may choose to ensure that cloth face coverings are worn” in order to protect workers. Although there are no workplace safety standards included in the guidance that specifically address COVID-19, it notes that employers must continue to follow their duty under the Occupational Safety and Health Act to provide workplaces that are “free from recognized hazards likely to cause death or serious physical harm.”
It also provides guidance for workers who want to report a business that is not doing enough or that has retaliated against someone for voicing a concern.
“OSHA developed these FAQs based on inquiries received from the public,” Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt said in a statement announcing the guidance. “OSHA is committed to giving employers and workers the information they need to work safely in this rapidly changing situation.”
The FAQ advises employers that they should evaluate potential new hazards associated with measures they take in response to the virus, such as chemical disinfectants used in cleaning products.
The guidance also addresses how employers should respond if an employee tests positive. There is no requirement to notify coworkers that someone contracted COVID-19, and other laws, such as the Americans With Disabilities Act, may prohibit disclosure, OSHA said.
Following OSHA and the Centers for Disease Control and Prevention‘s recently published separate guidance for seafood processors, there are sections devoted to the construction and health care industries.
The FAQ comes as several states are pausing reopenings and ordering some businesses to close again as new COVID-19 cases are spiking across the country. In recent days, Florida has seen the sharpest increase in new confirmed cases in recent days, while Idaho, Nevada, Delaware, Arizona, Tennessee, South Carolina, Louisiana, Alabama and Georgia also have experienced upward trends, according to Johns Hopkins University’s coronavirus tracker.
The FAQ is similar to earlier guidance that OSHA published in June for essential businesses, and is beneficial because it can help employers translate CDC guidance into practical steps that employers can take, said Chantelle Foley, an associate with Fisher Phillips LLP who counsels employers on workplace safety practices.
“This is good in the sense that it narrows it down to some of the most frequent questions that employers are asking,” she told Law360.
Because it is merely a set of recommendations, rather than something that carries more weight, an employer may not be able to mitigate a citation by arguing that it tried in good faith to comply, she said. However, that likely would not be an issue because OSHA is working with employers on providing compliance assistance, rather than jumping to citations, she added.
But Debbie Berkowitz, director of the worker health and safety program at the National Employment Law Project, a worker advocacy group, and a former OSHA chief of staff in the Obama administration, said the FAQ is weak and shows OSHA isn’t doing all it should to really protect workers.
“The document is full of vague and confusing guidance that is not required,” Berkowitz told Law360 by email. By laying out recommendations of things “employers should strive” to do, rather than setting enforceable standards, it’s “almost as if OSHA is bending over backwards to let employers know that nothing is really required,” she said. “OSHA has abandoned its mission to protect workers in this pandemic, and has clearly decided not to enforce the OSHA law.”
The Labor Department’s inspector general noted in a June report that OSHA and its sibling agency, the Mine Safety and Health Administration, face particular challenges developing guidance to help employers keep workers safe “in high-risk industries such as health care, law enforcement, meat processing, agriculture, manufacturing, delivery workers, retail, and mining.”
OSHA has taken heat for its perceived unwillingness to act with haste or force in responding to the pandemic. A D.C. Circuit panel in June rejected an AFL-CIO petition to force the agency to issue an emergency standard to address the coronavirus pandemic, deferring to the agency’s judgment that one was not necessary. The labor federation asked the full complement of D.C. Circuit judges to take up the matter.
OSHA also came under fire for not quickly issuing citations related to the coronavirus. Sweatt said in a May congressional hearing that the agency had issued its first coronavirus citation a few days earlier, preferring to build cases that could pass muster before unveiling charges.