Over the past few months, government officials have been consistently allowing businesses to reopen and get back to almost normal operations. Retail shops, restaurants, and business offices are reopening to new regulations put into place by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to ensure the safety of workers during the COVID-19 pandemic. Employers always have an obligation to provide a safe place to work – even during an unforeseen, worldwide pandemic. To ensure that the new OSHA COVID-19 regulations are being followed, the agency has stated it will increase inspections for COVID-19 related workplace violations. OSHA puts forth that the new enforcement guidance to increase inspections “reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread.” OSHA inspectors have been given direction to prioritize COVID-19 inspections and to use all enforcement tools available, as they have done in the past.
OSHA has released a variety of resources for employers to use that will help with a safe return to work for their employees. Employers should review OSHA’s booklet entitled “Guidance on Returning to Work,” which was published on June 18, 2020, “Understanding Compliance with OSHA’s Respiratory Protection Standard During the Coronavirus Disease” published on August 28, 2020, “The Use of Cloth Face Coverings While Working in Hot and Humid Conditions (Indoors),” and a separate version for working Outdoors which were both recently published in September 2020.
Sample OSHA guidance for business owners, operators, and employees includes:
- How to clean and disinfect the workplace
- Precautions for employees to take to prevent virus transmission
- The use of face coverings and social distancing
- Employer requirements for protection of employees
- Healthcare industry guidance for employees and employers
- COVID-19 case reporting
- Appropriate restroom and hand washing facilities
- Testing employees for COVID-19
- Training recommendations for employees
Throughout the pandemic, OSHA has provided conflicting information on when and how to report COVID-19 cases. The latest guidance issued September 30th, clarified that the time to report a COVID-19-related work incident runs from the time of the employee’s exposure to the virus (not from the time of the confirmed diagnosis). From its Frequently Asked Questions, “if an employer learns that an employee was in-patient hospitalized within 24 hours of a work-related incident, and determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19, the case must be reported within 24 hours of that determination.” Regarding fatalities, “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.” The guidance suggests that employers must first determine whether a COVID-19 case is work-related, but there is no guidance on how to make that determination. In an May 2020, guidance OSHA told employers to use the “more likely than not” standard of whether a workplace exposure caused the employee to contract COVID-19.
OSHA has also established workplace risk levels to assist employers in determining the level of risk their employees may have for exposure to the COVID-19 virus. The levels of risk are as follows:
- High and very high risk professions are those that have high potential of exposure to sources of COVID-19.
- Medium risk professionals are those with frequent and close contact (within 6 feet) of customers who may be infected with, but are not confirmed to have, COVID-19.
- Low risk professions are those that do not require close contact (within 6 feet) with people known to have, or are suspected of having, COVID-19.
OSHA will focus on in-person inspections in high risk workplaces in areas that continue to have high community spread statistics, such as hospitals. If a workplace is considered medium or low risk in an area with high community spread, OSHA may perform its investigation via phone call or letter to reduce the exposure risk of both inspectors and those in workplaces. OSHA will return to in-person inspections in areas with low community virus spread but may start the investigation process by phone call or letter. If an employer does not response to OSHA’s requests for off-site inspection, an in-person inspection may be initiated.
As of September 24, 2020, OSHA received a total of 9,051 complaints federally and 27,684 through the state systems. Interestingly, the number of fatality/catastrophe investigations has increased steadily since March and has already exceeded 900. The number of complaints and referrals indicates that more complaints are consistently received on Mondays than any other day of the week. Additionally, over 60,000 workers have been removed from COVID-19 hazards, according to OSHA’s website. Enforcement for COVID-19 workplace safety violations is increasing.
With inspections and complaints increasing, OSHA is trying its best to appropriately respond to the COVID-19 pandemic, even without setting a strict standard and only providing guiding principles. Many employers believe that OSHA should not be issuing citations where there are true challenges in acquiring personal protective equipment for employees, especially to employers making a good-faith effort to keep up with the changing guidelines. Employers should expect more citations to come from this enforcement agency as more inspections take place.
Texas Labor and Employment Attorneys
The impact of the COVID-19 pandemic is ever changing and employers must regularly monitor OSHA guidance on how to safely operate during the pandemic. If you need assistance with an OSHA inspection or defending against OSHA citations, contact the experienced Texas labor and employment attorneys of MehaffyWeber.