The Safety Swamp: COVID-19 and Other Alligators

“When one is up to his ass in alligators, it is easy to forget that his original objective was to drain the swamp.”  — William Moore

Thanks to the COVID-19 pandemic, just about every person in the world now knows that PPE stands for personal protective equipment. But instead of thinking about hardhats and steel-toed boots, fall protection and flame-retardant coveralls, they think of face masks and surgical gowns.

It’s really hard right now to get people to think about industrial safety, much less process safety, when a virus is ravaging the country—the world—and leaving thousands dead.

So, I’m not going to try. Instead, I’m going to talk about OSHA’s Guidance on Preparing Workplaces for COVID-19.

“Not a standard or regulation”

Many of us are working from home, so guidance on preparing “workplaces” for COVID-19 comes down to doing what we think best, in accordance with advice from the Centers for Disease Control or our favorite medical talking head on television. For employers whose employees are still doing essential work, which includes keeping our chemical industry running, there are still personnel in the workplace. As time goes on, we will eventually get on the downhill side of the crisis curve and people will begin to return to the regular workplace. Even though we will be on the downhill side of the curve, SARS-CoV-2 will still be out there.

So, it is important to know, not just what the CDC advises, but what OSHA expects.

Fortunately, OSHA recently published a guidance document that addresses just that.  No, there is not a new OSHA regulation on COVID-19.  As with all of the guidance documents that OSHA publishes, OSHA has gone to great pains to state that “this guidance is not a standard or regulation, and it creates no new legal obligations.” The document does explain what employers’ existing legal obligations are and how they relate to COVID-19

Existing Legal Obligations

When there is not a regulation for a type of safety hazard, OSHA always has the General Duty Clause to rely on for enforcement power. The General Duty Clause is not a regulation, but a section in the original 1970 law, 29 USC 654(a)(1), that states that employers must provide “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In February, one may have argued that COVID-19 was not a recognized hazard.

No longer.

There is also a set of regulations that apply. Subpart I of the general industry regulations addresses PPE. Except for fall protection, Subpart I does not say when certain PPE is required. The PPE regulations are about what kind of PPE must be used when it is required, and in the case of respirators, having a program that ensures the PPE is proper, properly used, and doesn’t pose its own hazards.  However (and this is a big however), the section on general requirements for PPE, 29 CFR 1910.132, has some important requirements.

1910.132(a) requires employers to provide the PPE.

1910.132(b) makes the employer responsible for PPE even when employees provide their own.

1910.132(d) requires employers to perform and document a hazard assessment to determine what PPE is required and to communicate that assessment to their employees.

1910.132(f) requires documented training on the PPE, its use and care, and on its limitations in protecting against hazards

1910.132(h) requires employers, with limited exceptions for non-specialty items and everyday clothing, to pay for the PPE.

Because of the shortages of N95 masks, OSHA has temporarily relaxed the enforcement of the PPE regulations for face masks, but we cannot expect that to last past the shortage.

Both the General Duty Clause and the PPE regulations have real teeth, so everyone needs to take them seriously.

What About the Bloodborne Pathogens Standard?

There is one OSHA regulation about diseases. The Bloodborne Pathogens Standard, 29 CFR 1910.1030, was put in place in response to the AIDs epidemic of the 1970s, but it applies to all bloodborne diseases.  For example hepatitis and Mad Cow Disease. COVID-19 is a respiratory disease, not a bloodborne disease, so the Bloodborne Pathogen Standard does not apply. But there are some important concepts in the standard that can be brought to bear on COVID-19.

The most important is the concept of “universal precautions”. Rather than testing employees to see who is infected with HIV and who is not, or looking for people with symptoms, the standard requires employers to use universal precautions: to treat all human blood and certain body fluids as if they are known to be infected with a bloodborne pathogen. In the context of COVID-19, we would be just as wise to treat ALL people, including ourselves, as though we know them to be infected with COVID-19. At a personal level, we don’t want to be infected and we don’t want to infect others.

Recommended Steps to Take

OSHA’s new guidance recommends several steps that employers should take. These go beyond the recommendations that are coming from the CDC and other health authorities. They include

• Develop an Infectious Disease Preparedness and Response Plan
• Prepare to Implement Basic Infection Prevention Measures
• Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate
• Develop, Implement, and Communicate about Workplace Flexibilities and Protections
• Implement Workplace Controls

Admittedly, the third item about identifying and isolating symptomatic people flies in the face of universal precautions.  Worse, it completely fails to address the fact that the majority of people infected are asymptomatic.  Generally, though, there is lot to be accomplished by carrying out these steps.

The Hierarchy of Workplace Controls

For those of us experienced in industrial safety and process safety, we are already familiar with the hierarchy of workplace controls.

At the top of the hierarchy are engineering controls—technical solutions to eliminate hazards or to automatically create a barrier between employees and the hazards.

Lower in the hierarchy are administrative controls and safe work practices—solutions that require human action, either by the employer or by employees, to implement.

At the bottom of the hierarchy of workplace controls is PPE. It is interesting to note that while PPE is at the bottom of the hierarchy of workplace controls because PPE is the risk reduction measure of last resort, it is the measure that seems to be getting the most attention in the media.

The OSHA guidance lists several ideas for each of these types of workplace controls that apply to the COVID-19 pandemic, all worth a look.

Draining the Swamp

“Flattening the curve” is not going to reduce the number of people infected by SARS-CoV-2 or the number of people killed by COVID-19. It simply spreads it out over a longer period, so the peak is not as high.  This is important to keep from overwhelming the healthcare system, but it also means we’re going to be in this for a long time. Unfortunately, we will grow used to this and we will return to work, probably before we should. When we get back there, we must get back to a place where it is safe to work.

Don’t be in too much of a rush to bring people back. Yes, it’s important to get back to the job of draining the swamp, of tackling the ongoing issues of industrial and process safety, but that doesn’t change the fact that we will still be ass-deep in alligators. So, be aware of and follow the best medical advice you can find. Just as importantly, be aware of and follow OSHA’s expectations for keeping your workplace safe.

Stay safe and healthy.