On January 8, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it has issued citations arising from 300 inspections for violations relating to coronavirus, resulting in proposed penalties totaling $3,930,381.
Some of the violations employers were cited for include failure to: implement a written respiratory protection program; comply with required medical evaluations, respirator fit tests, training on the proper use of a respirators and personal protective equipment; contact OSHA to report injuries, illnesses or fatalities when required under the regulations; record injuries or illnesses on OSHA recordkeeping forms or to submit recordable injuries or illnesses per electronic recording requirements; and comply with the General Duty Clause.
When we previously reported on OSHA’s initial covid-19 related citations in October, the citations dealt with the same types of violations.
As we enter the new calendar year of 2021, employers understandably desire to return to the way things were before COVID-19 entered our world. However, that attitude invites even more citations from OSHA, more scrutiny from government agencies, and potentially more injuries and illnesses flowing from the COVID-19 virus. Employers should take this opportunity to develop and implement a written COVID-19 policy and to create a Pandemic policy generally. Assuming the COVID-19 vaccines are effective and we move beyond the current crisis, there will be other viruses in the future which may be even more disruptive and deadly. So, what steps or “best practices” can employers take to protect the health and safety of their employees? Here are some recommendations to consider for employers to protect their employees and also perhaps avoid OSHA citations and COVID-19 legal issues in general:
- Follow the Center for Disease Control’s (CDC) recommendations. The best summary available is in the “Interim Guidance for Businesses” which includes recommendations on social distancing, facial coverings, cleaning and disinfecting the workplace, and the ever “moving target” on quarantining employees exposed to COVID-19.
- Follow OSHA’s guidelines as a resource in creating and implementing written COVID-19 policies. Even though the guidelines are not “mandatory” at this point, an employer’s good faith attempt and effort to comply will be taken into consideration when determining whether to issue citations. Further, and importantly, there are laws issued in several states which provide employers with a shield against civil lawsuits. To enjoy the defense against COVID-19 lawsuits, however, employers must be able to demonstrate “good faith” attempts at compliance with recommended practices and policies from the CDC and OSHA as well as other Health Departments.
- Train and educate employees on the employer’s written COVID-19 policies, CDC and OSHA recommendations, and document the training. This provides employees with a level of assurance that the employer is doing everything possible to protect employees from the COVID-19 virus in the workplace. As part of the training, educate employees of the symptoms of COVID-19 virus and remind them to seek medical attention if symptoms appear. Employers should also communicate with isolated and sick employees. Not only is such a practice good for employee morale but employees who feel cared about by their employer are much less likely to file complaints with OSHA and take legal action against the company.
- Employers should assign specific individuals to review and stay abreast of the constantly changing COVID-19 health recommendations. This allows employers to stay on top of current and evolving guidelines issued by the CDC, OSHA, Health Departments, and state and local governments.
Additional resources are available on OSHA’s COVID-19 webpage to help employers comply with these standards.