Workers’ Rights Regarding Personal Protective Equipment

According to the Occupational Safety and Health Act of 1970, workers have the right to safe working conditions. For years, personal protective equipment (PPE) has played a major role in ensuring the safety of workers in construction, manufacturing, and other industries in which job hazards are obvious. With the advent of COVID-19, the use of PPE has become vital to protecting employees in offices, restaurants, bars, and retail stores, which were previously considered non-hazardous workplaces. Employees who may be exposed to COVID-19 as a result of performing their jobs have the right to demand adequate PPE protection. Employers who fail to provide adequate PPE to employees may, in some instances, be held liable if their employees contract COVID-19 in the workplace as a result.

The PPE standards for general industry issued by the Occupational Safety and Health Administration (OSHA) focus on protecting employees from chemical hazards, radiological hazards, environmental hazards, and mechanical irritants.

OSHA requires that employers provide gloves, eye and face protection, and respiratory protection if those hazards are present. The following general guidelines apply to industries in which the need for PPE exists:

• Employers must train workers on the use of PPE.
• Employers must provide PPE at no cost to the employee.
• Employers may allow workers to bring their own PPE.

In addition, the PPE provided by employers must fit well and be properly designed.

Is My Employer Required to Protect Me Against COVID-19?

In the wake of the pandemic, OSHA has issued new guidelines regarding employers’ responsibilities to provide protection against COVID-19. Specifically, OSHA has divided occupations into the following categories of risk to clearly define the responsibilities of the employer:

• Very highest risk: This includes workers performing medical, postmortem, or laboratory procedures on individuals who have been infected by COVID-19.
• High risk: This includes health care delivery, health care support, EMTs, and other medical workers who are at a high risk of exposure.
• Medium risk: These occupations include those requiring frequent and close contact with the general public, including teachers, daycare providers, restaurant workers, bartenders, retail workers, hairstylists, airline employees, grocery store workers, bus drivers, delivery persons, and anyone else who must interact with people on a daily basis in close settings.
• Low risk: Workers at the lowest level of risk include those working from home and laborers working outdoors.

In all instances, employers that anticipate occupational exposure to COVID-19 are required to provide training on the hazards associated with that exposure, as well as the workplace protocols in place, including the use of PPE, to reduce the likelihood of exposure.

What Types of PPE Must My Employer Provide?

The types of PPE that an employer must provide will depend on the risk level of the workplace. PPE protection against COVID-19 includes the following:

• Disposable gloves
• Disposable masks
• Disposable gowns
• Hand sanitizers
• Cloth masks
• Goggles
• Plexiglass barriers
• N95 masks
• Powered air purifying respirators

In health care settings in which professionals are working in close contact with patients, N95 masks and/or PAPRs should be used. Social distancing should be enforced in office settings and retail environments. Employers must offer PPE training during scheduled work time and at no cost to the employee. Training regarding PPE must include the following:

• When to use PPE to reduce exposure to COVID-19
• How to properly dispose of used PPE
• Limitations of PPE

The bottom line is that employers are required to provide PPE if there is an occupational risk that workers may be exposed to COVID-19 on the job.

What Should I Do If My Employer Refuses to Provide Adequate PPE?

Workers who believe their employers are not providing adequate PPE should voice their concerns to their employers and document their communications. Workers can also file complaints with OSHA. For workers concerned with an employer’s failure to provide PPE, it is important to document when they asked the employer to provide safety equipment and what response was given, if any. Workers should keep copies of medical records that show the extent of their illness.

There have already been employees in different sectors who have been quite vocal about their concerns regarding their employers’ refusal to provide adequate PPE. Teachers in various states have quit their jobs or threatened to go on strike, fearing they will contract the virus upon returning to the classroom. In Pennsylvania, surviving family members of workers who died of COVID-19 are suing former employers for failure to provide adequate PPE. One of the largest nurses’ unions in the United States has filed more than 100 OSHA complaints against hospitals over inadequate PPE.

For employees who contract COVID-19 on the job, Workers’ Compensation benefits provide for medical treatment and lost wages. However, it may not be easy to prove that they contracted the virus because of workplace conditions and the employer’s failure to provide PPE.

If I Contract COVID-19, Can I Pursue Damages Beyond Workers’ Compensation?

Workers’ Compensation pays benefits to injured employees.  Typically, this is the employee’s only recourse against an employer.   However, all states, including Pennsylvania, recognize third-party liability. If a worker’s illness or injury occurs as a result of the negligence or intentional act of someone other than the employer, the worker may be able to pursue a third-party lawsuit. The applicability of third-party liability is still somewhat new in the context of COVID-19.

Philadelphia Workers’ Compensation Attorneys at Galfand Berger LLP Help Injured Workers During the Pandemic

If your employer has not provided OSHA-mandated PPE and you suffered an illness or injury as a consequence, it is in your best interest to seek qualified legal assistance. The Philadelphia Workers’ Compensation attorneys at Galfand Berger LLP help injured workers who face tough challenges. If you have any questions about Workers’ Compensation or third-party injury claims, please do not hesitate to call us at 800-222-8792 or fill out our online contact form. From our offices in Philadelphia, Bethlehem, Lancaster, and Reading, Pennsylvania, we proudly help injured workers throughout New Jersey and Pennsylvania, including Allentown and Harrisburg.