OSHA's COVID crackdown tool: 'General Duty Clause'.

• Author: Hyman, Jon
• Position: WHAT I WOULDN'T DO: Legal Updates from HR's Trenches

You may be surprised to learn that while OSHA has a lot to say about workplace safety during the pandemic, the agency lacks any specific standards covering infectious diseases or viral prevention at work. Instead, OSHA exercises its COVID-19 authority under what's known as its "General Duty Clause."

OSHA has already used the clause to levy more than $2.5 million in fines against companies cited for COVID-19 violations. It's important to understand this clause (and your obligations) to avoid being added to that ignominious list.

The General Duty Clause requires that employers provide a workplace that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

Because of a lack of any other pandemic-specific OSHA standards, most employers' COVID errors will be related to failures to meet their "general duty" to keep their employees safe.

Example: OSHA has said that while it doesn't have a specific standard mandating that employees wear cloth face coverings at work, the General Duty Clause still might mandate them in most cases. The agency says:

"If an employer cannot reasonably control, through social distancing and other administrative controls, asymptomatic and pre-symptomatic COVID-19-positive employees from spreading potentially infectious respiratory droplets to others, the General Duty Clause might impose an obligation upon an employer to mandate cloth face coverings." What other obligations does the General Duty Clause impose on employers? In recent guidance, OSHA highlighted these nine other steps for COVID-19 health and safety compliance:

1. Require workers to stay home if they...