The Occupational Safety and Health Administration (OSHA) is issuing inquiry letters based on complaints filed concerning workplace safety concerns relating to COVID-19. In the letter, OSHA advises the employer that it will not conduct an on-site inspection, but invites the employer to immediately investigate, respond to the allegations of violations and/or hazards, and advise OSHA of its findings. Many employers respond to the innocuous “invitation,” and do so without understanding their OSHA obligations or the potential fines and possible debarment from federal contracts which can result from its response.
OSHA is prioritizing COVID-19 complaints, and employees can file a complaint online. On October 9, 2020, OSHA reported that it had cited 62 establishments for safety and health violations related to COVID-19, resulting in proposed penalties totaling almost $1M. The most common violations cited by OSHA relating to COVID-19 are the following:
- Failure to implement a written respiratory protection program;
- Failure to provide a medical evaluation, respirator fit test, training on the proper use of a respirator and personal protective equipment;
- Failure to report an injury, illness or fatality;
- Failure to record an injury or illness on OSHA recordkeeping forms; and
- Failure to comply with the General Duty Clause of the Occupational Safety and Health Act of 1970.
As businesses are reopening, many employers have not understood the CDC and OSHA guidance to open “safely.” OSHA has issued guidance for employers on its website, and issued an Enforcement Response Plan for COVID-19. Under the OSHA guidance, an employer should conduct a hazard assessment for each job, and also should rank the COVID risk for the employee.
Under the Response Plan, fatalities and imminent danger exposures for workers with a high/very high risk of exposure related to COVID-19 will be prioritized for inspections. These high risk occupations include hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities, settings where home care or hospice care are provided, settings that handle human remains, biomedical laboratories, including clinical laboratories, and medical transport. Medium or lower exposure risk jobs (e.g., billing clerks) might not result in an on-site inspection, depending on the discretion of the Area Director. If an employer’s response to an informal inquiry is deemed inadequate, the Response Plan directs the CSHO to consider an on-site inspection in accordance with the Field Operations Manual.
While most employers will receive an informal inquiry letter from OSHA following a complaint to OSHA by an employee, it is important for employers to take such informal inquiry seriously and respond adequately. Employers need to understand which potential OSHA standards are at issue and assure that their response evidences compliance with the standards – including mitigating the hazard (i.e., COVID risk), rather than merely relying on personal protective equipment to protect workers. Notably, admissions made in the response to OSHA will result in penalties and possibly other enforcement action, as evidenced by the recent report of almost $1M in penalties assessed on employers for COVID-19 related complaints. Further, three serious citations can result in debarment of the employer from government contracts. Failure to respond in an appropriate manner also may result in an onsite inspection and additional penalties. Whistleblowers also are protected from retaliation.
Although OSHA and the CDC have issued a lot of guidance for employers to reopen their workplaces safely, compliance with the OSHA standards and creating a safe workplace is not intuitive. Knowing when to record a positive COVID test as a work-related injury also requires careful consideration of many factors, while under and over recording can also have negative consequences. Prudent employers should engage legal counsel to respond to the OSHA letter and, in advance, to advise the employer about safe workplace measures and drafting of workplace policies in light of the pandemic.
If you have questions concerning situations and specific legal issues, please contact your Najjar Employment Law Group, P.C. attorney.
© October 13, 2020