Updated July 29, 2020
|This general guidance is based on U.S. federal employment law and the current medical assessment of COVID-19. State and local laws may apply, and medical assessments may change, resulting in different conclusions.|
Answer 1. Potentially. Employees may be protected from retaliation under the Occupational Safety and Health (OSH) Act in certain circumstances when they refuse to perform work as directed. Specifically, an employee may refuse an assignment that involves “a risk of death or serious physical harm” if all of the following conditions apply: (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected the hazard through regular enforcement channels, such as requesting an OSHA inspection.” While each situation is different, and a generalized fear of contracting COVID-19 is not likely to justify a work refusal in most cases, employers may want to conduct a thorough review of the facts before any disciplinary action is taken against an employee who refuses to perform his or her job for fear of exposure to COVID-19 (see COVID-19: Employees With Symptoms or Exposure questions 6 & COVID-19: ADA question 2).
Even if the employee’s refusal is deemed justified, the OSH Act does not require that the employer be paid for any time he or she is not at work due to his or her refusal.
A2. For most categories of workers, medical/surgical masks and respirators are not required. Some states and local jurisdictions, however, may require all individuals to wear face coverings in certain situations. Employers should check their state governor’s executive orders and local emergency orders for guidance. The CDC generally advises that medical masks and respirators be “reserved for healthcare workers and other first responders, as recommended by current CDC guidance.” The CDC does recommend that people wear a cloth face covering in community settings, and certain local governments and public health authorities are recommending or requiring the use of such cloth face coverings. However, providing medical/surgical masks or respirators may be appropriate or even required for certain categories of workers, such as health workers, as well as required by applicable Occupational Safety and Health Administration (OSHA) standards. If an employer provides respirators, certain OSHA requirements will apply.
If an employer provides respirators (including N95 masks) and allows employees who may be worried about exposure to use them voluntarily, then the employer must provide a copy of Appendix D of OSHA’s Respiratory Protection Standard to the employees. The employer must also verify that the masks do not pose an additional hazard to employees. For example, the use of dirty masks may inhibit breathing, or the masks may not be appropriate if employees are exposed to other substances, such as airborne chemicals.
If the employer requires respirators (including dust masks or N95 masks), then OSHA’s standard requires a written respiratory protection program that includes training, fit-testing, and other provisions. For example, an employer that requires employees who may have been exposed to COVID-19 or who may have been diagnosed with COVID-19 to wear dust masks must have a written respiratory protection program (see 29 C.F.R. § 1910.134).
On April 3, 2020, OSHA issued Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic. This guidance relaxed the ability to extend the use of, and reuse of, N95 respirators, including allowing the use of “expired” N95 respirators. For more information, see our article summarizing the OSHA enforcement guidance.
OSHA does not classify surgical masks as “respirators,” and employers that require or permit employees to wear them do not have any compliance obligations under OSHA’s Respiratory Protection Standard. Surgical masks are generally used as a physical barrier to protect against large droplets or splashes of blood or bodily fluids, and will generally not prevent a healthy person from inhaling droplet contaminants like COVID-19. Surgical masks for people infected with COVID-19 may limit the spread of the illness to others.
A3. Yes, if such measures are not otherwise required by the CDC’s guidance or OSHA’s standards, or if the employer determines that the employee’s use of respiratory protection or gloves in and of themselves presents a hazard to the employee (e.g., if they interfere with the employee’s ability to work safely).
The CDC and U.S. Surgeon General state that respirators are not required for the general public working in non-healthcare settings. Given that, employers in non-healthcare settings with no infected employees have no need to require respirators. This means that OSHA’s Respiratory Protection Standard (29 C.F.R. § 1910.134) does not apply, as respirators are not being used to protect employees. Instead, employees are asking to wear respirators because they are concerned about a public health issue.
Employers are permitted to bar employees from wearing self-provided respirators, because there is not a work-related hazard in this scenario. If an employer decides to allow employees to wear self-provided respirators, the employer has no obligations under the Respiratory Protection Standard because it does not apply. As a practical matter, employers may want to consider communicating the following to employees who ask to wear respirators:
- The employer has assessed the situation and determined that respirators are not required to protect employees. Further, both the CDC and the Surgeon General have confirmed that masks are not required.
- If employees wish to wear self-provided respirators, the employer will allow them to do so, but it recommends that they consult with their personal physicians to make sure they are physically able to use respirators safely.
(See question 2.)
A4. OSHA does not have a specific standard or regulation that requires employers to take any particular actions with regard to COVID-19. Employers are, however, required to comply with Section 5(a)(1) of the OSH Act (the general duty clause), which requires employers to maintain a “workplace that is free from recognized hazards.” In addition, OSHA’s Respiratory Protection Standard requires employers to provide appropriate respirators to control exposure to “occupational diseases caused by breathing air contaminated with” [harmful” substances] (29 C.F.R. § 1910.134(a)(1)).
OSHA has issued guidance for employers regarding COVID-19, which divides employers into risk categories. Most job sectors have a low risk of exposure. However, some workers may have exposure to infectious people, including travelers who contracted COVID-19 abroad. Workers with an increased risk of exposure include those involved in “[h]ealthcare (including pre-hospital and medical transport workers, healthcare providers, clinical laboratory personnel, and support staff)”; “[d]eathcare (including coroners, medical examiners, and funeral directors)”; “[a]irline operations”; “[w]aste management”; and “[t]ravel to areas, including parts of China, where the virus is spreading.”
OSHA provides guidance (here and here)for workers and employers of workers unlikely to have occupational exposure to COVID-19 and to those in the specific industries of healthcare, deathcare, nursing homes and long-term care facilities, , meat and poultry processing, dental care, manufacturing, construction, retail operations, pharmacies, restaurants offering takeout services, package delivery services, airlines, environmental/janitorial services, in-home repair services (plumbing, electrical, HVAC), laboratories, border protection, correctional facilities, solid waste and waste management, and business travelers. The employer’s compliance obligations depend in large part on the risk category of the facility.
General guidance for all U.S. workers and employers:
For all workers, regardless of specific exposure risks, it is always a good practice to:
- Frequently wash your hands with soap and water for at least 20 seconds. When soap and water are unavailable, use an alcohol-based rub with at least 60 percent alcohol. Always wash hands that are visibly soiled.
- Avoid touching your eyes, nose, or mouth with unwashed hands.
- Avoid close contact with people who are sick.
Interim guidance for most U.S. workers and employers of workers unlikely to have occupational exposures to COVID-19:
OSHA states that “employers should assess the hazards to which their workers may be exposed; evaluate the risk of exposure; and select, implement, and ensure workers use controls to prevent exposure. Control measures may include a combination of engineering and administrative controls, safe work practices, and PPE.”
“In all workplaces where exposure to the COVID-19 may occur, prompt identification and isolation of potentially infectious individuals is considered a critical first step in protecting workers, visitors, and others at the worksite.”
(See question 2.)
A5. Yes, in some cases. First, employers must ensure that the infected employee stays away from the workplace. OSHA may cite an employer under the general duty clause if the employer allows or directs a known infected employee to come to work and expose other employees to the risk of infection.
If an employee in the workplace is suspected of having COVID-19 (i.e., someone displaying symptoms of COVID-19), that employee must be quarantined immediately. For example, employers may want to move such an employee to an isolation room and close the doors or, if an isolation room is not available, to a location away from workers, customers, and other visitors. Employers may want to take steps “to limit spread of the employee’s infectious respiratory secretions,” including providing the employee with a surgical mask and asking him or her to wear it, if he or she can tolerate doing so. Employers may also want to restrict contact with the potentially infectious employee and contact the local health authorities and/or CDC for further guidance.
Second, employers are required under OSHA’s recordkeeping regulation (29 C.F.R. Part 1904) to record illnesses that are “work related” and meet one of the recording criteria, which include days away from work, job transfer, and medical treatment. A work-related illness that meets these criteria must be recorded on the employer’s OSHA Form 300, and a Form 301 must also be completed. “An illness is work-related if it is more likely than not that a factor or exposure in the workplace caused or contributed to the illness.” An employee who contracts COVID-19 from a family member or while on a personal trip has not experienced a work-related illness. If, however, that employee infects a coworker, the coworker has suffered a work-related illness if one of the recording criteria (e.g., medical treatment or days away from work) is met.
OSHA published interim guidance stating that employers must assess “work-relatedness” in a “reasonable and good faith inquiry,” considering the following factors:
- “COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.”
- “An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.”
- “An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.”
- “An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.”
- “An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.”
- “[Inspectors] should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.”
If the employer cannot determine, after this “reasonable and good faith inquiry,” whether “it is more likely than not that an exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”
OSHA’s recordkeeping regulation exempts the “common cold and flu” from the recordkeeping requirements. COVID-19, however, is not a common cold or flu. OSHA’s current guidance states that “COVID-19 is a recordable illness when a worker is infected on the job.”
Third, employers may be required to report an employee’s coronavirus infection to OSHA under OSHA’s reporting regulation at 29 C.F.R. § 1904.39. If the infection is work related (e.g., the infection was contracted on the job or during business travel), and the infected employee is hospitalized as an in-patient, the hospitalization must be reported to OSHA within 24 hours of the incident. If the infected employee is not hospitalized as an in-patient but dies from the infection, the death must be reported to OSHA if it occurred within 30 days of the work-related incident.
Some state plans have different requirements. In California, for example, if an employee contracts COVID-19 on the job or during business travel, it would be reportable to Cal/OSHA if the employee suffers a “serious injury or illness” as a result of the infection. A COVID-19 infection would be considered a “serious injury or illness” in California if it “requires inpatient hospitalization for more than 24 hours for other than medical observation, or in which a part of the body is lost or a serious degree of permanent disfigurement occurs.”
For more answers to your frequently asked questions, please select a topic below:
- Compensation and Tax Issues
- Disability Related Inquiries and Medical Examinations
- Employees with Symptoms or Exposure
- Families First Coronavirus Response Act (FFCRA)
- Health coverage
- Hiring During the COVID-19 Pandemic
- Reduction in Force/WARN
- Retirement Plan Issues
- Short-term disability coverage
- Tax Credits Under FFCRA and the CARES Act
- Vacation, Paid Time Off, and Paid Sick Leave
- Wage and Hour
- Workers’ Compensation
- Workplace Safety