The coronavirus pandemic has impacted every aspect of our lives since March of 2020. During that time, employers have been bombarded with new, ever-changing guidance issued by both the CDC and OSHA as to how to protect workers from the coronavirus.
Like everyone else, OSHA is navigating this new normal to the best of its ability. Like everyone else, OSHA’s efforts have been the subject of much criticism. Specifically, OSHA has been accused of being too slow to adopt and enforce guidelines to prevent the spread of coronavirus among workers. As a way to “save face,” OSHA recently started issuing citations to employers to demonstrate that they are taking these responsibilities seriously. We expect many more OSHA citations to follow, and encourage employers to prepare and protect themselves accordingly.
General Duty Clause Violations
First, it is important to understand the type of citations OSHA is issuing in response to the coronavirus. The “General Duty Clause” of the OSHA Act of 1970 requires that each employer provide a place of employment that is free from recognized hazards that are likely to cause death or serious harm to employees. This provision is generally used to issue citations only when no other, more specific standard applies to the hazard at issue. In the few instances where citations are written for violations related to coronavirus, they have largely been issued under the general duty clause.
These language of the citations have all been relatively similar too, with most companies in question cited for “failing to protect workers from the coronavirus.” This language falls within the general duty clause’s scope because OSHA alleged that these companies have failed to protect their employees from recognized hazards in the workplace.
Though it seems daunting, the good news is that citations issued on the general duty clause can be beaten. In order to prove a violation of the general duty clause, OSHA must show that:
- The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
- The hazard was known;
- The hazard was causing or was likely to cause death or serious physical harm; and,
- There was a feasible and useful method to correct the hazard.
If one of these elements is not satisfied, then there is no violation. As a result, it is critical to identify arguments to refute one or more of the elements listed.
For example, employers have been issued citations stemming from inspections in March and April 2020. In response to this, it can and should be argued that hazards presented by coronavirus were largely unknown until much later. Also, administrative agencies, such as the CDC and OSHA, were also unprepared for how fast coronavirus spread, resulting in delayed regulatory guidance.
Additionally, employers can and should argue that the existence of a “feasible and useful method” was not available. Depending on the size of the workplace, the type of work done, and other factors, it may not have been possible to have made timely adjustments to help prevent the spread of coronavirus and comply with the delayed, sporadic regulatory guidance. Also, there was an incredibly high demand for PPE (i.e., face masks, respirators, face shields, etc.) that made extremely difficult (i.e. infeasible) to obtain enough of these materials in such a short amount of time.
Numerous other arguments can be made in response to the elements provided for a violation against the general duty clause. Under these circumstances, it is beneficial to find an experienced attorney or law firm that has experience battling with OSHA and dealing with coronavirus-related citations.
Steps to Take NOW to Prevent COVID Citations
Employers can effectively protect themselves from being subjected to OSHA inspections and/or citations relating to coronavirus. The easiest way to do this is to do the following:
- Stay current on all CDC, OSHA, and local COVID guidance and best practices;
- Prepare a COVID plan and incorporate the current CDC, OSHA, and local guidance into the plan;
- Train employees on the plan and inform them of the new policies and procedures;
- Enforce the plan, including questioning employees about symptoms before allowing them to work;
- Display the plan and/or signage throughout your business for employees, guests, and others;
- Reinforce the plan and the policies outlined whenever possible (company emails, announcements, meetings);
- Document all the steps taken to protect against COVID and its spread; and
- Investigate all employee COVID cases to try and identify how the employee contracted COVID (see our questionnaire).
It is important to note that these steps may not prevent a COVID inspection or citation. However, making a reasonable effort to complete these steps will reduce the likelihood of both.