OSHA Publishes More and More Coronavirus Guidance: Does It Matter to COVID Victims in Indiana and Illinois?
The Occupational Safety and Health Administration (OSHA), as part of the federal government’s Department of Labor, routinely publishes all sorts of publications, from cards and magnets to be used in the workplace as well as employee booklets and worksite posters, along with laminated “QuickCards” to be used by employers and employees.
This year, more and more “OSHA Alerts” are being issued in response to the Coronavirus Pandemic. But what do they mean for workers in Illinois and Indiana, especially those who are worried about being exposed on the job to COVID-19, or others who have contracted the virus while at work?
OSHA Regulations for Illinois and Indiana Workers
The federal Occupational Safety and Health Act mandates that employers comply with the safety and health standards and regulations promulgated by either by OSHA or by a state with an OSHA-approved state plan. This Act creates a responsibility for employers to keep workers safe while on the job. Specifically, its General Duty Clause (Section 5(a)(1)) states that employers must provide employees with a workplace free from recognized hazards that are likely to cause death or serious physical harm.
Both Indiana and Illinois have state-approved plans for some, if not all, workers. When there is a state-approved plan, OSHA monitors the Plan, provides funding (as much as 50%), and makes sure that the state-run program is “at least as effective as the federal OSHA program.”
- Illinois has an OSHA state-approved plan that covers state and local government workers only.
- Illinois’ private workplaces are covered by federal OSHA.
- Indiana has an OSHA state-approved plan that covers both private and state/local government workplaces.
OSHA Educational Publications
Some of the OSHA publications are educational and instructive, like a workplace poster warning against falls from ladders, scaffolds, and roofs to be placed on construction sites. (See it here.) Others are more research-oriented, like Fact Sheets which provide details on specific safety concerns, such as the OSHA Fact Sheet on Amputations.
Regulation Specific Publications
There are also agency publications that deal with the specific federal standards and regulations for worker safety that are required to be met by employers under federal law. Examples here include the publication entitled, “Bloodborne Pathogens Standards under 29 CFR 1910.1030 and 29 CFR 1910.1200,” and periodic news releases providing annual statistics for workplace injuries and fatalities by industry and corresponding regulation (see, e.g., the November 2019 Release for Employer-Related Workplace Injuries and Illnesses – 2018).
Guidance Is Not Legally Binding
Of importance here for workers in Indiana and Illinois, as well as the rest of the country, is the agency’s stated recognition that no form of written guidance provided by OSHA is legally binding upon an employer. Guidance provided by OSHA is not to be considered as a standard or regulation established for the employer. OSHA guidance does not create new legal obligations.
Instead, OSHA guidance is considered by the agency to be “advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.”
Safety and Welfare: COVID-19
Since the Coronavirus Pandemic began in March 2020, there has been a national outcry over keeping workers safe on the job from exposure and harm due to COVID-19. As we discussed earlier, OSHA has responded to concerns over the legal requirements placed upon employers to keep workers safe from the Coronavirus.
OSHA’s position remains unchanged. No new federal regulations will be passed in response to the Coronavirus Pandemic, because current federal safety laws are sufficient to apply to the situation.
Coronavirus Alerts from OSHA in 2020
Meanwhile, OSHA is churning out more and more industry-specific publications providing guidance to various employers in how to keep workers safe from contracting COVID-19 while at work. These publications are called “Alerts” and each focuses upon a specific industry.
So far, OSHA has provided the following Coronavirus Alerts, many written in both English and Spanish:
- Coronavirus: COVID-19 Guidance for Dental Practitioners: OSHA Alert NEW
- Coronavirus: COVID-19 Guidance for Nursing Home and Long-Term Care Facility Workers: OSHA Alert NEW
- Coronavirus: COVID-19 Guidance for Restaurants & Beverage Vendors Offering Takeout or Curbside Pickup: OSHA Alert NEW
- Coronavirus: COVID-19 Guidance for Retail Pharmacies: OSHA Alert NEW
- Coronavirus: COVID-19 Guidance for Retail Workers: OSHA Alert NEW
- Coronavirus: COVID-19 Guidance for Rideshare, Taxi, and Car Service Workers: OSHA Alert NEW
- Coronavirus: COVID-19 Guidance for Stockroom and Loading Dock Workers: OSHA Alert NEW
- Coronavirus: COVID-19 Guidance for the Construction Workforce: OSHA Alert NEW
- Coronavirus: COVID-19 Guidance for the Manufacturing Industry Workforce: OSHA Alert NEW
- Coronavirus: COVID-19 Guidance for the Package Delivery Workforce: OSHA Alert NEW
- Coronavirus: COVID-19 Guidance on Social Distancing at Work: OSHA Alert NEW
- Coronavirus: Prevent Worker Exposure to Coronavirus (COVID-19): OSHA Alert NEW.
COVID-19 Victim Claims for Justice after Contracting Coronavirus at Work in Indiana or Illinois
While OSHA Alerts are described as non-binding upon employers, and given as “tips” to various industry practitioners, it is important for both workers and employers to understand the specifics of these alerts as they apply to the workplace.
OSHA is not drafting new federal regulations applicable to the Coronavirus. Existing law (and past case precedent) will be applied to cases asserted by victims against employers for harm resulting from exposure to the virus while on the job. However, these Alerts do help define the specific circumstances each industry faces when dealing with the Coronavirus Pandemic.
Dentists’ Alert Example
Most employers are told in these Alerts to “encourage workers to stay home if sick,” for instance, but dentists are alerted to “install physical barriers or partitions between patient treatment areas,” which is an industry-specific safety task.
This Alert arguably helps define a dentist’s duty of care to his dental assistant and staff, for example. If there is no barrier or partition in the dentist’s office and an employee is infected with COVID-19, then the victim may be able to look to the Alert as giving that dentist knowledge of steps he or she needed to take in order to meet the duty of care required by federal law. By failing to install the barrier or partition, the victim who worked in that dentist’s office may be able to assert this created a “recognized hazard likely to cause death or serious physical harm” in violation of Section 5(a)(1) of the Occupational Safety and Health Act.
For more on COVID-19 and workers in Indiana and Illinois, read:
- Coronavirus on the Job: OSHA Failing to Keep Workers Safe from COVID-19 but New Notice May Help Victims Prove Their Legal Claims
- Coronavirus Workers’ Compensation in Illinois: IWCC Forced to Repeal Help to COVID-19 Victims
- Coronavirus on the Job: Proving Employee Exposure Claims Against Employer for COVID-19 Injury
In Indiana and Illinois, workers who are seriously or fatally injured by the Coronavirus because their employer failed in its duty of care to protect them from harm while on the job may have legal claims to present to the employer. The risk of COVID-19 exposure is real and employers in Indiana and Illinois have a legal duty to keep workers safe, in industry-specific ways. Please be careful out there!
