COVID-19 Cases May be Subsiding, But OSHA Will Continue Enforcement

With the proliferation of the various COVID-19 vaccines, many are hopeful that at some point this year the world will be able to return to business as usual.  Employers worldwide have been pushed to their limits and beyond, attempting to deal with the changes that COVID has forced upon them, and many are dreaming of the day when they can get back to work.  However, even with the increases in vaccines, the impact of an infected employee can still wreak havoc on a workplace, and if employers are not adhering to best practices for safety, they can be on the hook for the failure to do so.

In early January, the federal Occupational Safety and Health Administration (OSHA) announced that in 2020, it fined employers across the country a total of almost four million dollars for “coronavirus violations.”  Those violations included failures to implement written respiratory protection programs, provide medical evaluations, report or record injuries, and comply with the General Duty Clause of the Occupational Safety and Health Act.

In late January, the agency announced stronger workplace guidance on coronavirus in effort to reduce the risk of transmission of COVID and improve worker protections.  This guidance is in the form of recommendations, rather than standards, or regulations.  However, it is important to take heed of the guidance due to the possibility of OSHA finding a violation in the case of an outbreak at a place of business.  OSHA requires employers to provide a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm; that includes COVID-19.

While many employers have already done so, the guidance from OSHA states that the implementation of a COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 in the workplace.  COVID-19 prevention programs should include:

  • The assignment of a workplace coordinator responsible for COVID-19 issues;
  • Identification of where and how workers might be exposed to COVID-19;
  • Identification of safety measures to limit the spread of COVID-19;
  • Consideration of protection for workers at higher risk for severe illness, such as older adults or individuals with disabilities, through supportive policies and practices;
  • Establishing a system for employees with language barriers to communicate effectively;
  • Education of workers on COVID-19 policies;
  • Direction of infected workers to stay home and isolate, while minimizing the negative affect of isolation;
  • Recording and reporting COVID-19 infections and deaths;
  • Making vaccines available to employees at no cost; and
  • Not distinguishing between workers who are vaccinated and those who are not.

The last two recommendations from OSHA are significant.  First, OSHA is recommending that employers provide access to vaccines for all employees when available.  We’ve already discussed where the law currently stands on vaccines in our blog last year.  Second, OSHA is reminding employers that even if an employee is vaccinated against COVID-19, they should still require all employees to continue abiding by safety protocols to avoid the spread of the virus.  This not only protects employees from accidental transmission, but doesn’t single out employees who may not be able to receive the vaccine due to disability or religious restrictions.

And why are we still emphasizing the OSHA recommendations that employers should already have in place?  Because OSHA is still enforcing its standards every day!  Just two days ago, OSHA announced a finding of a violation at a Missouri auto parts manufacturer after two employees who tested positive for COVID-19 operated a machine while not wearing masks, and infected their co-workers who worked on the same machine days later, and one of those co-workers later died after contracting the virus.  As a result, OSHA proposed penalties for the company totaling $15,604.

We are slowly making our way to the end of this pandemic.  However, just because restrictions on gathering are loosening does not mean employers can relax their own safety measures, especially when it comes to worker safety.  If you, or your organization, need assistance in understanding or complying with safety laws, contact the Wiley Law Office, for legal advice that works.