As businesses across the country return to in-person operations, the Occupational Safety and Health Administration (OSHA) has been activity enforcing workplace safety related to COVID-19.
As your risk management partner, we offer you the following three tips to avoid OSHA citations related to COVID-19…
https://www.youtube.com/watch?v=zMMm1NU1hUw
Tip #1: Develop a safety plan around state and federal guidelines.
OSHA enforces employers’ general legal duty to maintain a safe workplace. When the following elements are present, OSHA may find that an employer violated its general safety duty when: (1) Employees were exposed to a hazard in the workplace, (2) the hazard was recognized by the employer, (3) the hazard was causing or was likely to cause death or serious physical harm, and (4) there was a feasible and useful method of correction. Where an employer fails to follow guidelines issued by the Centers for Disease Control (CDC) for COVID-19 safety, the above elements are generally present. Based on OSHA’s most recent enforcement actions, employers that generally comply with the CDC’s guidelines for social distancing, masking, and hygiene are best positioned to avoid citation.
Tip #2: Prepare for contact tracing and engage a third-party investigator.
OSHA’s regulations require employers to report work-related hospitalizations and fatalities associated with COVID-19. For an incident to be “work-related,” an employee must have been exposed to COVID-19 in the workplace. Because the origin of exposure is typically uncertain, OSHA does not require employers to report unless workplace exposure is more likely than not. For employers to prove that an incident is not reportable, employers must have conducted a reasonable contact tracing investigation.
To limit legal risk in multiple areas of employment law, you are best advised to engage a third party to assist with contact tracing investigations. Otherwise, you could increase legal vulnerabilities by learning information about an employee’s protected classification, disability, or family health history.
Tip #3: Encourage employees to report all perceived hazards and investigate all good faith reports.
By encouraging employees to follow a process to report observed hazards, you may increase the likelihood of discovering safety violations and potential entry points for COVID-19 exposure. Under OSHA’s regulations, employee whistleblowers must be protected from retaliation for all good faith complaints. Unless there is clear evidence that an employee is only reporting to harm the company or harm another employee, all complaints must be thoroughly investigated and taken seriously.
BONUS TIP: Revise your policies in accordance with the CDC’s updated guidance on “close contact.”
Under its prior guidance, the CDC defined “close contact” as being within 6 feet of an infected person for 15 minutes. Now, under its revised guidelines, the CDC views close contact as being within 6 feet of a person for a cumulative of 15 minutes or more for a 24-hour period starting from two days before illness onset (or, for asymptomatic employees, two days before the COVID-19 test was done) until the time that the employee is isolated.
To prevent OSHA citations and minimize risk exposure, employers should carefully update their COVID-19 policies and safety plans. Importantly, contact tracing will need to address the new definition of “close contact.”
If you have any questions about the above, please contact Hall Benefits Law. We would love to hear from you, and the HBL team looks forward to serving as your legal risk management partner!
Hall Benefits Law, LLC
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