by Courtney Henderson
As stress and uncertainty surrounding the novel coronavirus (COVID-19) continues, tensions in the workplace are amplified, as are the number of employment lawsuits. Businesses are finding increasing liability concerns as new employee rights and additional legal requirements are developed in response to the pandemic.
In addition to lawsuits, regulatory agencies have been investigating and fining businesses and agencies. As of November 27, 2020, Federal Occupational Safety and Health Administration (OSHA) announced $3.3M in COVID-19 violations. These violations were largely due to failure to uphold the General Duty Clause which requires employers to ensure their workplace is free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees. Common themes for these citations were centered around inadequate documentation or reporting, lack of proper workplace assessment, and insufficient protection measures.
Multiple states have state OSHA agencies and numerous states have state specific COVID-19 requirements, many of which are now taking enforcement actions.
The following states have state-specific OSHA COVID-19 requirements:
In California, Cal/OSHA is beginning enforcement of the state’s COVID-19 Emergency Temporary Standards (ETS), which have been in effect since November 30, 2020. As of February 1, 2021, violations of these standards, which are very prescriptive in nature, are officially subject to enforcement. So far Cal/OSHA proposed penalties related to COVID-19 violations have ranged from $5,000 to over $420,000.
The ETS requires employers to establish, implement, and maintain an effective written COVID-19 Prevention Program that includes:
- Identifying and evaluating employee exposures to COVID-19 health hazards.
- Implementing effective policies and procedures to correct unsafe and unhealthy conditions (such as safe physical distancing, modifying the workplace, and staggering work schedules).
- Providing and ensuring workers wear face coverings to prevent exposure in the workplace.
Employers must also provide effective training and instruction to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19-related benefits that affected employees may be entitled to under applicable federal, state, or local laws.
These elements must be included within your existing Injury and Illness Prevention Program (IIPP) or created as a separate written program. An outdated program, missing program elements, insufficient or missing personal protective equipment (PPE), insufficient social distancing, and failure to provide training are all violations that have been issued by Cal/OSHA so far. Employers also have notification obligations with strict timelines for reporting COVID-19 cases to the district; missing those can lead to steep penalties the more time that passes. This can be difficult to navigate when reporting rules vary by state. Even county health departments may have different requirements, which change frequently. For example, to be considered a “reportable” COVID-19 case, Federal OSHA requires a confirmed COVID-19 positive result through testing while California does not require this confirmation and must be reported if it meets the definition of a “serious injury or illness.” This requires meticulous record-keeping and contact tracing.
Keeping abreast of all the changes requires diligence. To avoid a potential violation, businesses need to update their programs, ensure implementation of all required administrative and engineering controls, tighten their record-keeping practices, and visit the CDC, WHO, OSHA, and state-specific websites frequently, to stay updated. Industrial hygiene experts can help you develop site-specific protocols and update existing health and safety, and emergency response plans to address current risks and adhere to the latest regulatory requirements. If you want to make sure that your business is staying on top of this wilding changing landscape, hire a good consultant – NV5 is here to help.
Cal/OSHA, Citations for COVID-19 Related Violations, March 2021, https://www.dir.ca.gov/dosh/COVID19citations.html
CCR §3205 COVID-19 Prevention
Cal/OSHA COVID-19 Emergency Temporary Standards – What Employers Need to Know, December 18, 2020, https://www.dir.ca.gov/dosh/dosh_publications/COVIDOnePageFS.pdf