OSHA Citations on the rise against Employers for COVID-19 Reasons
If you have not been paying close attention to COVID-19 work place exposure and hazard investigations then you may be missing how active the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has been especially over the past month of October 2020. According to a recent OSHA press release, since the start of the coronavirus pandemic through October 22, 2020, they have cited 144 establishments for violations relating to coronavirus, resulting in proposed penalties totaling $2,025,431. Thirty-two of those establishments received coronavirus-related citations totaling $421,887 from OSHA relating to one or more of the below violations during the time period of Oct. 16 to Oct. 22, 2020. That means that almost a quarter (1/4) of the total penalties has occurred in the last thirty days.
So let’s discuss some of the violations these employers are getting cited for. According to the press release, OSHA inspections have resulted in the agency citing employers for violations, including failures 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
As you may recall, back on May 19, 2020, the enforcement memo entitled “Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)” was issued by the Occupational and Safety Health Administration (OSHA) detailing how OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee coronavirus illnesses for all employers. The guidance is intended to be time limited to the COVID-19 public health crisis. See Memo here.
Per this memo, under OSHA's recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if:
The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
The case is work-related as defined by 29 CFR § 1904.5; and
The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
Combine that memo, continued guidance including the update in OSHA’s FAQ approximately a month ago on September 30, 2020, answering the following question:
Under 29 CFR 1904.39(b)(6), an employer must "report a fatality to OSHA if the fatality occurs within thirty (30) days of the work-related incident." For cases of COVID-19, the term "incident" means an exposure to SARS-CoV-2 in the workplace. Therefore, in order to be reportable, a fatality due to COVID-19 must occur within 30 days of an exposure to SARS-CoV-2 at work. The employer must report the fatality within eight hours of knowing both that the employee has died, and that the cause of death was a work-related case of COVID-19. Thus, if an employer learns that an employee died within 30 days of a work-related incident, and determines afterward that the cause of the death was a work-related case of COVID-19, the case must be reported within eight hours of that determination.
Besides all the above stated violations, has this September update in the FAQ guidance allowed for more violations because employers have not been reporting COVID-19 appropriately? Or have employers started reporting more cases of hospitalizations including COVID-19 deaths triggering more investigations where the employers are getting cited for workplace hazards related to COVID-19. Due to the various timing of this guidance, the uptick recently would suggest yes to possibly both of these questions or at least should caution employers to revisit whether they are understanding the guidance from OSHA in case they end up being investigated because clearly a lot of Employers are getting it wrong according to OSHA and the DOL.
Visit OSHA’s website for more information.