Margaret Anne Hill, Frank L. Tamulonis III, and Stephen C. Zumbrun
As the world’s attention turns increasingly (and almost exclusively) to the spread of COVID-19 (the coronavirus), we want to take this opportunity to highlight two important federal agency responses from the U.S. Occupational Safety and Health Administration (“OSHA”) and the U.S. Environmental Protection Agency (“EPA”). The responses from the Center for Disease Control (“CDC”) and World Health Organization (“WHO”) have received the bulk of public attention to date, and for good reason. Just this week, the WHO declared the outbreak a pandemic with nearly 125,000 cases reported across 118 countries and territories. WHO has shipped supplies and protective equipment to 57 countries and is preparing to ship to another 28 countries. WHO has published an R&D roadmap and comprehensive technical guidance. WHO has also pledged more than $440 million (U.S.) to WHO’s Strategic Preparedness and Response Plan.
Here at home, the CDC has likewise been operating in overdrive to reduce the spread and impact of the virus. The CDC has issued multiple clinical guidance documents for healthcare professionals in addition to travel guidance related to COVID-19. The CDC established a COVID-19 Incident Management System on January 7, 2020, and activated its Emergency Operations Center on January 21. Multidisciplinary teams have been deployed to support state and local health departments. CDC also developed diagnostic testing to track and confirm COVID-19 cases and testing kits from commercial labs are expected soon. The CDC has also issued well-publicized recommendations for the public to follow.
In addition to these sweeping responses from the WHO and CDC, OSHA and EPA have been busy preparing and executing their response to this pandemic. While some employers may be able to provide significant flexibility to employees, allowing them to work from home, other employers will need to keep employees onsite, and will need to ensure the safety of their workforce. Other employers, which may manage medical wastes, will need to exercise additional precautions in ensuring that infectious wastes potentially contaminated with COVID-19 are managed in accordance with relevant state and EPA medical waste requirements. Below are the highlights from each agency.
There are no specific OSHA standards that apply to COVID-19; that said; there are existing OSHA regulatory requirements which apply to employers to prevent occupational exposure to COVID-19, and OSHA discusses the applicability of these standards on its COVID-19 webpage. These OSHA standards include:
- Personal Protective Equipment Standard (29 CFR 1910, Subpart I) which requires, as needed, the use of gloves, eyewear, and respiratory protection;
- the General Duty Clause (codified at Section 5(a)(1) of OSHA) which requires employers to provide each employee with a place of employment which is free from recognized hazards that are causing or likely to cause death or serious physical harm; and
- Bloodborne Pathogens Standard (29 CFR 1910.1030) which applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may transmit COVID-19. OSHA notes on its webpage that the provisions of this Standard provide a framework for controlling some sources of the virus including exposures to body fluids.
OSHA’s Sanitation Standard (29 CFR 1910.141) also requires employers to provide clean workplaces and sanitary conditions for employees. Also relevant to employers, and highlighted on OSHA’s webpage, are the Recordkeeping Requirements set forth at 29 CFR Part 1904, which require employers to maintain certain records pertaining to workplace injuries and illnesses on their OSHA 300 logs. OSHA further notes on its webpage that it considers COVID-19 a “recordable illness” when a worker is infected on the job.
The last section of OSHA’s new COVID-19 webpage reminds employers that Section 11(c) of the statute prohibits employers from retaliating against employees who raise concerns about safety and health conditions. OSHA’s Whistleblower Protection Program enforces more than 20 industry-specific federal laws protecting employees from retaliation for reporting workplace safety concerns.
In addition to these identified federal standards, employers need to remember that there are applicable state standards as set forth in OSHA’s 28 approved state plans. Importantly, the approved state OSHA standards may be more stringent than the federal standards. Employers are advised to review their individual state OSHA plans to determine if there are additional standards requiring compliance.
OSHA has issued a Guidance Document, Guidance on Preparing Workplaces for COVID-19, that focuses on “the need for employers to implement engineering, administrative, and work practice controls and personal protective equipment (PPE), as well as considerations for doing so.”
EPA’s involvement in combating COVID-19 began in January 2020 with the issuance of its Emerging Viral Pathogens Guidance for Antimicrobial Pesticides. This program allows EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) to rapidly authorize the list of approved disinfectants against COVID-19. Companies that submit information through this program can include a product’s effectiveness against COVID-19 on EPA-registration labels. EPA has updated their List N of EPA-registered products effective against COVID-19. Most information about COVID-19 is, quite frankly, alarming, but one encouraging aspect of the virus is its susceptibility to disinfectant. According to EPA, this virus is an “enveloped virus” and can be killed with the appropriate disinfectant. As more products are deemed effective against COVID-19, EPA’s product List N will likely expand.
Additionally, EPA and other federal and state agencies regulate medical waste. Currently, the CDC has issued guidance that normal medical waste procedures should be followed for COVID-19 related waste. At the federal level, EPA regulates treatment and disposal of medical waste, which is either incinerated or sterilized. OSHA regulates employee safety for those handling medical waste during any stage of the process (collection, transport, and disposal). The Department of Transportation regulates the transport of medical waste and the Drug Enforcement Administration addresses the disposal of controlled drugs. In addition to these federal agencies, most states also have medical waste disposal regulations. This regulatory framework is an otherwise mature regulatory program in existence since the late 1980s. But with the rapid approach of COVID-19, the importance of this framework will increase, and companies will need to monitor regulatory modifications to these requirements.
Should you require further counsel in connection with applicable OSHA and EPA requirements as they may apply to COVID-19 please contact Margaret Hill, Frank Tamulonis, or Steve Zumbrun.