Through Dec. 3, OSHA has issued COVID-related citations to 263 employers, resulting in proposed penalties exceeding $3.5 million. OSHA announced earlier this year that eliminating hazards from coronavirus would be a top priority for its 2020 and 2021 enforcement actions and that it would be paying particular attention to high-risk workplaces, such as hospitals and other healthcare providers treating COVID-19 patients and workplaces with high numbers of coronavirus-related complaints or known cases.
Frequently cited COVID-related violations
The majority of the 263 employers cited for COVID-related violations have been in the healthcare sector, while several meat processing facilities have received citations as well. The most frequently cited COVID-related violations involved respiratory protection, personal protective equipment, the reporting and recordkeeping of work-related COVID illnesses and fatalities, and OSHA’s general duty clause.
Respiratory protection/personal protective equipment
The greatest number of citations involved violations of OSHA’s respiratory protection standard, which applies to employers in the health care sector and others where workers are exposed to hazardous levels of airborne contaminants. Employers were cited for various COVID-related violations within the general respiratory protection standard, including failing to establish, implement or update a written respiratory protection program with worksite-specific procedures. Other citations involved failing to provide effective training and basic information on why a respirator (a specialized face mask) was necessary; how improper fit, usage or maintenance could reduce protection; the limitations and capabilities of the respirator; and how to use the respirator effectively in emergency situations. Some employers failed to perform an appropriate fit test for a tight-fitting facepiece respirator, or they did not provide a medical evaluation before a worker was fit-tested or used a respirator, according to OSHA. Others were cited for failing to select and provide an appropriate respirator based on the respiratory hazards to which the worker was exposed.
Within the separate personal protective equipment (PPE) standard, OSHA found that many health care sector employers did not assess the workplace to determine if hazards were present, or were likely to be present, that would require the use of facemasks, face shields and gowns. Some failed to select and require the use of appropriate PPE, while others did not communicate their selection decisions to each affected employee or select PPE that properly fit each affected employee.
As there have been shortages of respirators and other PPE at various points in the pandemic, OSHA is temporarily using enforcement discretion for employers who failed to meet certain requirements as long as those employers did everything in their control to comply.
Reporting and recording of illnesses and deaths
All employers, regardless of industry or size, must report the work-related fatality of an employee within eight hours of the death. Employers are also required to keep records of fatalities, injuries and illnesses that are work-related. These were two common citations with regard to COVID cases in the workplace.
With some deaths and injuries, it’s easy to determine if they are work-related; for instance, if a construction worker falls to his death while working on a bridge, it’s clearly a work-related death. When employees test positive for COVID, however, it’s not always clear-cut whether they contracted it at work. But OSHA requires employers to take steps to determine if the infection was related to work. According to the agency’s guidelines, COVID illnesses are likely work-related when absent an alternative explanation, several cases develop among workers who work closely together, or if an employee contracted the virus after a lengthy, close exposure to a particular coworker or customer who was confirmed to have the virus. In addition, COVID may be deemed work-related if an employee’s work requires close exposure to the general public and there is no other explanation.
General duty clause
Under the general duty clause of the OSHA Act of 1970, employers must furnish each of their workers with “employment and a place of employment that are free from recognized hazards that are causing or likely to cause death or serious physical harm to the employees.” In the context of COVID, the clause requires that employers protect employees from the virus by following guidelines such as installing plastic barriers or ensuring appropriate social distancing. The general duty clause is only used when no specific standard applies to a particular hazard, and, prior to this year, it was not cited very often. To prove employers violated the clause, it must be shown that they failed to keep the workplace free of a hazard to which employees were exposed; that the hazard was recognized; that the hazard was causing or was likely to cause death or serious physical harm; and that there was a feasible and useful method to correct the hazard.
OSHA’s COVID-19 webpage has many resources to help employers comply with standards related the virus.
If you are looking to contest an OSHA citation, prepare for the OSHA inspection process or need assistance with another matter, give us a call. The OSHA lawyers at Sheehy Ware and Pappas have a wide range of expertise ranging from OSHA compliance counseling to representing clients in OSHA lawsuits.