OSHA Takes Active Role in Enforcing COVID-19-Related Workplace Safety

On January 8, 2021, OSHA reported a total of $3,930,381 in penalties arising from 300 coronavirus-related inspections.

OSHA has issued nearly 300 citations related to COVID-19 safety violations since the start of the pandemic. Some of the most common violations pertain to record keeping and reporting issues, availability of personal protection equipment (PPE), lack of respiratory protection and general duty clause violations.

OSHA has issued guidance and publications for workers and employers on how to mitigate the spread of the virus. Of particular note is the Guidance on Preparing Workplaces for COVID-19, Lessons Learned and Guidance on Returning to Work.

The most common essential industries where complaints arise include the healthcare industry (2,909 complaints), retail trade (1,543 complaints) and restaurants (788 complaints).

Nine Lessons Learned

OSHA suggests employers heed nine lessons learned from their COVID-19-related investigations thus far:

1. Provide a medical evaluation before a worker is fit-tested or uses a respirator.
2. Perform an appropriate fit test for workers using tightfitting respirators.
3. Assess the workplace to determine if COVID-19 hazards are present, or likely to be present, which will require the use of a respirator and/or other personal protective equipment (PPE).
4. Establish, implement and update a written respiratory protection program with required worksite-specific procedures.
5. Provide an appropriate respirator and/or other PPE to each employee when necessary to protect the health of the employees (ensuring the respirator and/or PPE used is the correct type and size).
6. Train workers to safely use respirators and/or other PPE in the workplace and retrain workers about changes in the workplace that might make previous training obsolete.
7. Store respirators and other PPE properly in a way to protect them from damage, contamination and, where applicable, deformation of the facepiece and exhalation valve.
8. For any fatality that occurs within 30 days of a work-related incident, report the fatality to OSHA within eight hours of finding out about it.
9. Keep required records of work-related fatalities, injuries and illness.

According to OSHA, some of the most common COVID-19-related workplace safety citations involve violations of the following provisions:

General Duty Clause

• The employer did not furnish a place of employment that was free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.
  • Under the general duty clause, employers must protect employees from COVID-19 hazards at the workplace by, for example, installing plastic barriers or ensuring social distancing.

Subpart 1904 – Reporting and Recording of Occupational Injuries and Illnesses

• The employer did not report a fatality to OSHA within eight hours after the death of any employee as a result of a work-related incident.
• The employer did not keep records of fatalities, injuries and illnesses that were work-related.

Subpart 1910.132 – Personal Protective Equipment

 Note: OSHA reports these citations occurred in the healthcare sector and involved medical facemasks, faces shields and gowns.

• The employer did not:
  • Assess the workplace to determine if hazards are present, or are likely to be present, which require the use of PPE.
  • Select, and require the use of, appropriate PPE.
  • Communicate selection decisions to each affected employee.
  • Select PPE that properly fits each affected employee.
  • Properly document in writing that the required hazard assessment had been performed.
  • Provide training to each employee who is required to use PPE.

Subpart 1910.134 – Respiratory Protection

• The employer did not provide a medical evaluation before the worker was fit-tested or used the respirator.
• The medical evaluation was missing required information.
• The employer did not perform an appropriate fit test for a tightfitting facepiece respirator.
• The employer did not establish, implement or update a written respiratory protection program with worksite-specific procedures.
• The employer did not provide effective training and basic information. The training must be comprehensive, understandable and recur annually, or more often, if necessary.
• The employer did not provide training before the employee used a respirator in the workplace.
• The employer did not provide an appropriate respirator to each employee, when necessary, to protect the health of the employee.

Please note: Respirators are not the same as surgical masks.

As the reopening process continues and more employees return to the workplace, employers and business owners should keep these lessons in mind. Incorporating this guidance into reopening plans can help ensure both a safe, healthy workplace and compliance with OSHA requirements.

Applying these lessons to a particular workplace will involve a case-specific analysis. Employers and business owners should be aware that OSHA is taking an active role in enforcing the safety violations discussed above. Consulting with an attorney may be a prudent step to resolve any questions or ambiguities.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.