Nine actions employers should take to avoid OSHA COVID-19 related citations

Even the best-intentioned employers find the constantly changing federal OSHA guidance on COVID-19 unnerving. For example, consider the decision whether to report an employee’s hospitalization or death due to COVID-19, which was addressed with different guidance in April, May, July, and, most recently, October (see OSHA watch). Moreover, few citations were issued in the Spring and Summer, so employers could not learn from OSHA’s enforcement actions. Employers had to make educated guesses about what to do and faced the prospect of receiving citations and fines for their good faith efforts.

While we suspect the flip-flops will continue, there is more data for making informed decisions. Citations have ramped up significantly in the last 45 days, shedding light on OSHA’s enforcement priorities. Since the start of the coronavirus pandemic through Oct. 22, OSHA has cited 144 establishments, employing more than 650,000 workers, for violations relating to coronavirus, resulting in proposed penalties of $2,025,431. In the first 22 days of October, 82 establishments were cited with fines totaling over $1.1 million.

To date, many of those fined by federal OSHA are health care organizations, the agency’s top priority. However, OSHA has received over 25,000 employee complaints about employers’ responses to the pandemic from a wide variety of industries, and with each passing week, the agency is expanding its efforts. Cal/OSHA recently fined five grocery stores with penalties ranging from $13,500 to $25,560, because they did not update their workplace safety plans to properly address hazards related to the virus. The agency has also fined employers in food processing, meatpacking, health care, agriculture, retail industries, and temporary employment agencies. Michigan OSHA, which has aggressively used the General Duty Clause, has fined fitness centers, contractors, restaurants, nurseries, retail stores, gas stations among others.

Employers risk not only fines and citations related to COVID-19, but also scrutiny of other OSHA standards. Equally important, OSHA citations create the potential for collateral damage. COVID-19 has led to a mushrooming of personal injury and wrongful death lawsuits and civil lawsuits related to liability. Citations can also trigger sanctions from other regulatory authorities, including state and local health departments. Moreover, they open the door for far more costly future citations of repeat violations. While the current maximum penalty for a serious

violation is $13,494, the maximum for repeat violations can be assessed more than 10 times that amount—$134,937.

But, perhaps most important is the potential for reputational damage. During these unprecedented times, people tend to scrutinize companies’ behavior more than usual. Employees, customers, shareholders, suppliers, and other stakeholders will remember what companies did or did not do. OSHA citations can threaten a company’s standing as a reputable entity.

Here are nine actions employers should take:

1. Review and update your site-specific COVID-19 Exposure Control and Response Plan (and if you don’t have one, do one now)

Many companies developed plans in May or June. The fluidity of the events and guidance surrounding the pandemic require that this be a “living document” that must be updated as conditions change, and relevant information is disseminated by federal, state, and local agencies.

Citations under the catch-all General Duty Clause will rely on guidance from agencies such as the CDC and OSHA that the employer did not meet.

2. Stay up-to-date on OSHA guidance

A daunting task, to be sure, but a necessary one. Federal OSHA does not have a formal rule or standard related to COVID-19, so employers must rely on guidance memorandums and FAQs https://www.osha.gov/SLTC/covid-19/controlprevention.html that are constantly being revised and updated. There are also 28 approved State-OSHA plans with their own reporting requirements that sometimes diverge widely from the federal agency. Virginia adopted the first set of workplace safety standards related to COVID-19 and Michigan OSHA has just adopted an emergency standard (see OSHA watch). Many expect that California will soon follow.

3. Have written policies and procedures for managing COVID-19 cases, even if they are likely from community exposures

OSHA’s website notes that prompt identification and isolation of potentially infectious individuals is a critical first step in protecting workers, visitors, and others at the worksite. The policies should communicate the procedures for employees to report when they are sick or have symptoms and the steps the employer takes to limit the spread of the virus.

It’s important to review these policies in light of CDC’s new definition of “close contact.” https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/appendix.html#contact  The 15-minute trigger now is a cumulative period over 24-hours. It will be necessary to update the policies and contact tracing questionnaires.

4. Reinforce your infection prevention measures frequently

Reminding employees about frequent hand washing, encouraging workers to stay home when sick, providing tissues, proper trash receptacles, hand sanitizers, masks, flexible work hours and staggered shifts, discouraging use of other workers’ desks, phones, tools, etc., and increasing physical distance between employees, as well as enhanced cleaning and disinfecting protocols, convey a strong message that the company’s top priority is the employee’s health and safety. Complaints are a major source of COVID-19-related inspections.

5. Implement workplace controls

OSHA has classified worker exposure to COVID-19  https://www.osha.gov/Publications/OSHA3990.pdf into four groups – very high, high, medium, and low, and identifies what to do to protect workers in each group. Understanding how OSHA views risks and its expectations of employers are critical to avoid citations.

6. Ensure compliance with all standards

While many citations will fall under the General Duty Clause, COVID-19-related citations will also be issued under other standards. Among the most relevant are OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I; in construction, 29 CFR 1926 Subpart E), the Respiratory Protection standard 29 CFR 1910.134). Bloodborne Pathogens standard (29 CFR 1910.1030), Recordkeeping and Reporting Occupational Injuries and Illnesses (29 CFR 1904), as well as others. The agency identifies applicable standards on its website. https://www.osha.gov/SLTC/covid-19/standards.html

Recent citations have included failure to implement a written respiratory protection program, and failure to provide a medical evaluation, respirator fit test, training on the proper use of a respirator, and personal protective equipment.

7. Know the reporting and recording requirements

In a recent news release, OSHA noted the top five reasons for citations related to COVID-19. Failure to report an injury, illness, or fatality was one and, failure to record an injury or illness on a recordkeeping form was another. Indeed, this has been one of the most challenging tasks for employers. Not only has the guidance on reporting and recording changed (see OSHA watch), but the determination of “work-related incident” is daunting.

It is important to know the differences between reporting and recording. The newest iteration of OSHA’s guidance on reporting suggests that COVID-19 hospitalizations will rarely have to be reported because of the lengthy incubation period, but that more deaths will have to be reported. Reporting will trigger a response from OSHA.

It also suggests employers must continue to record numerous COVID-19 cases that are work-related. Eric Conn, an attorney with Conn Maciel Carey, notes employers are handling this differently. Some employers are recording all COVID-19 cases with an asterisk if they couldn’t tell whether the cases were work-related, whereas others aren’t recording anything until they make that determination to avoid artificially inflating their illness rates.

Employers should document each case and the reasons for their decision. In so doing, employers should reference OSHA’s memorandum https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19 that addresses work-relatedness.

Note: This information relates to federal OSHA, the requirements are stricter in states such as California https://www.dir.ca.gov/dosh/coronavirus/Reporting-Requirements-COVID-19.html and Virginia https://www.doli.virginia.gov/vosh-programs-coronavirus-covid-19-resources/

8. Be prepared to respond to a rapid response or phone/fax investigation

Such investigations provide an opportunity to respond before OSHA opens an inspection. Given the high volume of cases and the challenges of on-site inspections, this method may be used frequently. While a strong response can resolve the complaint, a poor response can become a written record of admission. Dustin Boss, a Certified Risk Architect and Master WorkComp Advisor with Ottawa Kent Insurance notes, “Employers must ensure there is a procedure in place for managing and developing the responses to these situations and be strategic about the information they share with OSHA in the response.”

9. Document everything

Boss encourages employers to keep detailed records of everything that affects the business and the steps it takes to minimize exposure. Keeping a timeline of events is very helpful.

• Document when employees or customers report symptoms or a positive diagnosis
• Document preventative measures and additional cleaning
• Track payroll and other expenses related to COVID-19.
• Document the dates and reasons for any changes to your operations, whether voluntary or government mandates (i.e. policy changes, hours of operation changes, closures). Make copies of any government orders mandating your closure
• Document employee training

In these challenging times, it is a struggle to keep up with changing COVID-19 regulations. We are here to help.

Workers’ Compensation and COVID-19: an update Regulatory, legislative, and guidance updates – federal

CDC: Material revision to the definition of close contact

The new definition, which can be found on the CDC’s website,

https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/appendix.html makes it clear that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes), should be based on a cumulative amount of time over 24-hours and not one continuous 15-minute interaction. It was developed based on a limited exposure study https://www.cdc.gov/mmwr/volumes/69/wr/mm6943e1.htm?s_cid=mm6943e1_w at a correctional facility.

This new definition has important implications for employers, including determining if short interactions over a full-shift totaled more than 15 minutes (or even 2 shifts if within 24 hours) when a COVID-19 case arises. It greatly expands the universe of who may be considered a “close contact,”  making contact tracing even more difficult and could potentially involve many more employees in quarantine requirements. Employers should review their COVID-19 infection control plans with this new definition in mind and update contact tracing questionnaires to include inquiries focused on the cumulative approach.

EPA updates its list of registered disinfectants

The Environmental Protection Agency (EPA) has again updated its list of registered disinfectants https://cfpub.epa.gov/giwiz/disinfectants/index.cfm that can help prevent and reduce the spread of COVID-19 – extending the total number of disinfectant products on the agency’s sortable, searchable database to more than 500.

OSHA: Citations ramping up and new guidance