As states and cities across the U.S. discuss the criteria necessary to reopen non-essential businesses safely, labor groups and others have called on federal OSHA to issue an emergency temporary standard (ETS) on infectious disease. Whether or not that happens, there’s still plenty of news coming out of the agency that construction contractors and other employers should be aware of.

Applicable Federal OSHA Standards

Though there’s currently no specific standard addressing SARs-COV-2, OSHA notes numerous existing standards may still apply. OSHA lists applicable standards as those pertaining to respirators and other personal protective equipment (PPE), recordkeeping, sanitation and the agency’s general duty clause.

OSHA Guidance for Construction Employers

OSHA’s website doesn’t go much beyond the CDC’s safety practices for the general public (i.e., stay home if you’re sick, wash your hands, etc.), though their Guidance on Preparing Workplaces for COVID-19 may give employers a broad overview of addressing COVID-19 in the workplace. Construction employers are likely better served by reading the more specific guidance on the LHSFNA’s Coronavirus & COVID-19 Resources page, particularly our Recommended COVID-19 Response Plan for Construction Employers.

OSHA does note additional guidance exists for certain critical industries (e.g., first responders, healthcare workers, airline operations) where employees are at higher risk for exposure, but construction isn’t included on that list.

Enforcement News

When it comes to construction and COVID-19, OSHA’s enforcement efforts will rely heavily on their non-formal phone/fax program and local health departments. Several notable updates have outlined how Area Offices and compliance safety and health officers (CSHOs) should approach investigations.

• Discretion for Good Faith Efforts: CSHOs should use discretion issuing citations if employers “thoroughly explored all options to comply with the applicable standards.” Examples of good-faith efforts include using engineering/administrative controls and safe work practices, such as restricting access to areas, installing partitions to separate workers or rescheduling required worker training activities as soon as possible once the workplace reopens.
• Recording Cases of COVID-19: COVID-19 is a recordable illness. However, construction employers are only required to report confirmed cases when there is objective evidence the case is work-related. Examples of evidence include employee statements or a cluster of cases among employees who frequently work together. OSHA notes that this guidance aims to let employers “focus their response efforts on implementing good hygiene practices in their workplaces … rather than on making difficult work-relatedness decisions.”

• Annual Fit-Testing: Expanding previous healthcare-only guidance to include all industries, this memo directs CSHOs to consider good-faith efforts related to complying with annual fit-testing requirements, as long as employers:
  • Use only NIOSH-certified respirators
  • Suspend annual fit-testing to optimize supply of N95s under CDC guidance
  • Still perform initial fit tests when workers are required to wear a respirator
  • Inform workers of these changes and explain the importance of obtaining a good seal and reporting if the fit of their N95 is inadequate
• Addressing the N95 Shortage: OSHA urges employers to reassess controls and work practices to decrease the need for N95s. The agency suggests employers consider available alternatives that provide more protection, such as elastomeric respirators or other filtering facepiece respirators (e.g., N99, R95, P100). When alternate options aren’t available, OSHA permits extended use or reuse of disposable respirators “as long as the respirator maintains its structural and functional integrity and the filter material is not physically damaged, soiled or contaminated.” Extended use is preferred over reuse due to the risk for contact transmission.
• Respiratory Protection from Other Countries: This memo allows employers to use certain types of respiratory protection certified by other countries, including equipment beyond its manufacturer shelf life (i.e., expired). For a full list of approved models during the shortage, see the full text of this OSHA memo.

State Actions Going Beyond Federal OSHA

Construction contractors and other employers should be aware that more stringent requirements can be put in place at the state or local level. Whether through state OSHA programs, health departments or executive orders, many state and local governments are doing just that.

The LHSFNA continues to develop guidance, fact sheets and other resources to help LIUNA signatory contractors reduce risk for COVID-19 on the job and support workers throughout this crisis. For more information, visit the Fund’s COVID-19 Resources page.