The threat of COVID-19 remains and employers must ensure that they are actively taking the proper measures to protect their employees. The struggles caused by the pandemic seem to continue on endlessly, and it is only natural that fatigue may have begun to set in for some. Safety standards and protocols imposed early on may not now be as carefully monitored or enforced as before. Employers must remain vigilant, however. This is the message to be taken from the most recent publication of OSHA.
On October 9, 2020, OSHA issued a press release outlining $913,133 in proposed penalties it has issued since the start of the pandemic. These inspections have resulted in citations to employers for a number of violations of OSHA standards, including:
Failure to implement a written respiratory protection program;
Provide a medical evaluation, respirator fit test, training on the proper use of a respirator and personal protective equipment;
Report an injury, illness or fatality;
Record an injury or illness on OSHA recordkeeping forms; and
Comply with the General Duty Clause of the Occupational Safety and Health Act of 1970.
Of particular note, the General Duty Clause states that each employer shall furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” to its employees. Section 5(a)(1) of the Occupational Safety and Health Act of 1970. OSHA’s guidance specifically requires compliance with this standard in its COVID-19 guidance. https://www.osha.gov/SLTC/covid-19/standards.html. OSHA, along with the Centers for Disease Control and various state health departments, have issued detailed guidance for employers to use in designing protocols to protect employees from the threat of COVID-19 infection. To ensure that they are meeting their general duty to protect employees, employers should be aware of their responsibilities under the COVID-19 guidance, and be able to demonstrate how they have implemented that guidance in their workplaces.
Employers should also seek to communicate its protective measures to employees. In a separate update, OSHA also reported that as of October 8, 2020, it has also received 9,334 COVID-19 related complaints regarding the possible violation of standards, and that states have received 29,136 such complaints. https://www.osha.gov/enforcement/covid-19-data. To avoid possible complaints, employers should ensure that employees are aware of the efforts taken to protect them, and to develop an internal avenue for employees to report and correct potential concerns.
For more information about the citations issued by OSHA, please see the full press release at https://www.osha.gov/news/newsreleases/national/10092020.
If you have any questions about the citations issued by OSHA, the General Duty Clause, or your own COVID-19 protocols, please contact one of the attorneys in our Employment Law Group at 1-888-488-2638.