Last week, we had the pleasure of listening in to a webinar from Robert Ayers and Dora Lane, attorneys from Holland & Hart, around OSHA in the time of COVID. We’ve broken down what we learned here.
We’d like to remind you that this is just for general information and educational purposes only. It’s not legal advice, or a recommendation or suggestion. You should consult your own counsel before acting (or not) based on this information.
Federal OSHA hasn’t created any requirements for COVID. Instead, they’re relying primarily on the “General Duty Clause,” which requires employers to create a place of employment free from recognized hazards. They are using the CDC and OSHA-issued COVID guidance to establish a recognized hazard regarding the coronavirus.
In a way, the current OSHA guidance does turn the CDC’s guidance into a requirement, since it can use failure to follow it as a violation of the General Duty Clause. This is complicated, of course, by the fact that different states and local jurisdictions may have different guidelines. But OSHA appears to be relying heavily on the CDC’s guidance, so it can behoove companies to closely follow the CDC guidance closely to avoid any issues.
OSHA has stated that it intends to conduct at least 5% of inspections related to COVID, which translates to about 1,500 inspections. Restaurants are included in the primary target group for those inspections, along with processing plants and some other key target groups. It hasn’t said whether these would be complaint driven, but we do know that, in the past, they’ve visited after complaints or accusations of retaliation against employees who brought up safety concerns.
You should check your own state requirements, as well as federal reporting requirements. Some states require reporting for any cases, others just in certain circumstances. For federal OSHA reporting, you’ll need to do your own internal investigation to determine whether this is work-related. You only need to report confirmed, work-related cases that involve days away from work. For most cases, the real question here is whether it was work-related. OSHA does have guidance on this, found here.
If you determine that it’s workplace related transmission and an employee dies or requires in-patient hospitalization, you’ll need to report within 8 hours (fatalities) or 24 hours (in-patient hospitalizations).
They might be! Many states have their own OSHA-approved state plans with different guidelines and requirements, while others operate under federal OSHA. Virginia, California, and Michigan specifically, require reporting of COVID cases. Some after a single case, others after two or three in the same workplace. In Massachusetts, for example, COVID cases must be reported to the Department of Health. Other states and even counties have specific reporting requirements, so it’s key to check the local regulations in each specific situation.
First talk to that employee. Do they know where they were exposed to COVID? Do they ride the bus to work? Does their mother or boyfriend or sibling have COVID, too? Second, check for other employee illnesses around the same time. Is there a pattern of COVID symptoms or confirmed COVID in the workplace?
If you’re not seeing transmission in the workplace and they know where they were likely exposed, you’re probably in the clear in terms of this being not workplace related. It’s still key to keep records of your investigation in case OSHA comes calling.
Respiratory protection, hazard assessment (PPE), recordkeeping/recording, and reporting are the most commonly cited standards violated in COVID-related inspections last year.
Robert Ayers, from Holland & Hart, reports hearing that OSHA is going after retaliation against employees who raised COVID concerns. Make sure you’re communicating to employees that they won’t be punished for raising any concerns about workplace safety, including COVID issues.
Perhaps most important is record keeping. For every confirmed COVID case, record the investigation that you do to determine whether it’s work-related and keep that on file in the case that they visit. If you can show them that careful investigation for each COVID case you’ve had, you’re off to a great start. You can be sure they’ll ask for this.
You want to treat it like most other health inspections, too. They’ll check for hand soap in the bathroom, for social distancing or physical barriers and generally for proper masking.
One obscure rule is that if any employees choose to wear an N95 or KN95, even if those aren’t required, you’ll need to inform them of certain necessary info (Appendix D). They may ask how you’re informing employees of the necessary info there.
Maybe. Some legal experts think OSHA might use the General Duty Clause we discussed earlier to say that you know that not wearing masks is a hazard, per the CDC.
Yes. OSHA has been clear that even fully vaccinated employees need to follow all the same guidelines and requirements.