How Coronavirus Could Impact Your OSHA Compliance

Why is this important to employers? Complaints to OSHA that are employee safety related are five times higher than rates prior to the pandemic. In response, OSHA has conducted hundreds of on-site investigations triggered by employee complaints or when OSHA had reason to believe an employee death or serious illness was COVID-19 related.

In March, OSHA issued employer guidelines for the pandemic, but these are advisory in nature and do not carry the force-of-law. While OSHA has not developed specific COVID-19 related mandatory standards as of the date of this writing, inspectors appear to be relying on the “General Duty Clause” for their pandemic related enforcement actions. The OSHA General Duty Clause is an exceptionally broad regulation that requires employers to “furnish each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.” Consequently, in citing the General Duty Clause, OSHA does not have to prove that the employer violated a specific OSHA Standard. OSHA will look for probable cause that requirements of the General Duty Clause have been not been met by the employer. Employers who knowingly expose their employees to undue risk during the coronavirus pandemic can be issued Willful violations of OSHA Standards that carry monetary fines of up to $135,000 per occurrence. Serious and Other Than Serious violations have a maximum penalty of almost $13,000 per occurrence. Failure to Abate citations carry maximum fines of almost $13,000 for every day the employer fails to comply by the mandated correction date established by OSHA.

TEN COMMON OSHA COMPLIANCE EMPLOYER MISTAKES DURING THE CORONAVIRUS PANDEMIC

Based on available research, these are the ten most frequent OSHA compliance issues that have surfaced since the beginning of the coronavirus pandemic:

1) Not conducting a workplace safety assessment when reopening for business or allowing for business activities to continue: While some jurisdictions are allowing certain non-essential businesses to continue in business or reopen, this should not be construed as a green light to operate in a “business as usual” mode. OSHA Standards require employers to conduct safety and health related inspections at a frequency and detail reflective of the employee injury and illness potential for that industry group or workplace. An area of concern is whether there is evidence the coronavirus is still being spread by person-to-person contact in the local community. If so, employers need to review workplace safety concerns such as which employees could come into contact with members of the general public, the proximity they may have to coworkers and the potential use of common areas, workstations and equipment. Such potential hazards or deficiencies identified as the result of an assessment should be documented and the necessary workplace safety and health controls implemented.

2) Requiring non-essential employees to return to work during the Pandemic: This can be a touchy legal issue and will only be discussed here in terms of OSHA compliance. Under OSHA Standards, employees can refuse to work if the following conditions are met:

• The worker has asked to eliminate a danger and the employer has refused to do so.

• The employee refusal to work is in “good faith” and the worker genuinely believes that an imminent danger situation exists in the workplace.

• A “reasonable” person would agree that there is a real danger of death or serious injury/illness.

• There isn’t enough time to get the hazard corrected through regular channels.

• An employer should also take into consideration if there are still new COVID-19 cases being reported in the local community. If so, this could substantially contribute to an employee’s fear of having to return to work without the assurance that there are proper controls provided in the workplace.

3) Not addressing employee safety related concerns relating to potential spread of the virus at work: It is likely that OSHA is receiving a historically high volume of employee safety related complaints because many organizations in both the public and private sector are either failing to address legitimate employee concerns or providing what workers perceive as inadequate or conflicting responses to their inquiries. Unless management has clear proof to the contrary, any employee related complaint or concern should be treated as a right guaranteed to them under Federal OSHA or State OSHA Law. The nature of the complaint along with any other related information should be documented, along with management’s response and the corrective action taken. This documentation can be very important to management if the worker decides to file a formal compliant with OSHA.

4) Requiring employees to furnish their own personal protective equipment: OSHA regulations clearly state the employer’s responsibility to provide necessary PPE to all exposed employees and that it must be provided to them at no charge. OSHA regulations allow for workers to use their own PPE in the workplace but it must provide a protection level at least equal to what the PPE that the organization is providing to other workers. For instance, if management is requiring N95 level face masks usage by their employees, a worker cannot use their own inferior type of mask while at work.

5) Not providing employees with Coronavirus related training: Such employee instruction needs to extend beyond the use and care of PPE to such other important topics as social distancing, hand washing, the covering of sneezes and coughs, and the disinfecting of work surfaces and equipment.  The method of the training is not as important as getting the information out in a timely and comprehensive manner.

6) Not posting Coronavirus related warning signs and instructions: One of the most frequently overlooked signs that should be posted in the workplace is a list of COVID-19 symptoms and instructions that employees should not come to work and seek medical attention if displaying symptoms. Other warning signage should deal with social distancing requirements, the covering of sneezes and coughs, and avoiding the sharing of workstations and equipment. In addition, there may be a need for more specific warnings such as the proper disposal of trash and other waste materials that have come into contact with workers.

7) Allowing employees to share common work areas, workstations and equipment while there are still new coronavirus cases being diagnosed in the local community: It is known that the coronavirus can last for a number of days on certain metal, wood and plastic surfaces. Since the effectiveness of disinfecting activities cannot be guaranteed with any certainty, one of the best precautions management can take to limit the spread of the virus is controlling the use of offices, workstations and equipment. As an example, rather than have unlimited employee use of the copy machines, it might be more prudent to assign just one person to operate a particular machine. The same controls may also need to be extended to the use of organizational vehicles, conference rooms and classrooms.

8) Failing to alert employees that a co-worker has tested positive for the COVID-19 virus: If management receives reliable information that an employee has been confirmed as having COVID-19, plans should be made to quickly notify other employees. This communication should not reference the infected individual by name or provide other information that could reveal their identify to others, as this is usually prohibited under OSHA law. In a timely manner, management should contact legal counsel to discuss the information to be released to the other employees.

9) Not correcting or disciplining workers who fail to follow the organization’s coronavirus safety rules and policies: Under OSHA, employers have the right to both establish and enforce reasonable safety rules. At a minimum, employees who are observed not following the rules should be notified on-the-spot, told that they are in violation of the established safety rules and be subject to corrective action. Workers who show a pattern of abuse with safety rules during the current pandemic should be sent home. Their ultimate employment fate should be discussed with corporate legal counsel before final action is taken. In such instances, the nature of the employee misconduct should be clearly documented to avoid later employee claims of unfair punitive action or wrongful termination.

10) Retaliating against an employee that makes a safety related complaint to either management or OSHA: An employer is prohibited from taking negative actions against a worker solely for sharing a safety related concern or filing a formal safety compliant with OSHA. Such prohibited retaliations include, but are not strictly limited to job termination, suspension, demotion, job transfer, reduction of pay or work hours, threats and intimidation. OSHA classifies such workers as “Whistleblowers” and Congress has authorized OSHA to investigate employee allegations of retaliation by management as a result of safety concerns or complaints. If OSHA investigators determine employer retaliation did occur, they can refer the case to the Department of Justice for prosecution.