RICHMOND, Ky. — The Association for Linen Management (ALM) shares that as of November 2020, nearly $2.5 million in fines have been issued for COVID-19 safety violations.
That begs the question, what Occupational Safety and Health Administration (OSHA) regulations are being applied to issue these fines and what changes have been made on a federal and state level?
Barry Spurlock, an attorney and an associate professor at the School of Safety, Security and Emergency Management at Eastern Kentucky University in Richmond, provided some guidance on OSHA and COVID-19 during the recent ALM webinar “2021 OSHA Update/COVID-19 Related Safety Guidelines.”
“I think many people through the COVID struggles and challenges seem to think that they get the special treatment with OSHA,” he says.
“There are some specific guidelines to specific things that OSHA is doing, but in the world of inspections and violations and penalties, OSHA still has that framework that it has to work in for COVID, just like it would for lockout/tagout or confined space entry or some other OSHA standard.”
INSPECTION TRIGGERS
What triggers an OSHA inspection during the current pandemic?
“This is still the same report of imminent danger; that always takes top priority,” says Spurlock. “If there’s a report of imminent danger, then behind that is a fatality inspection. They want to look to see what can we do to prevent a fatality from happening.”
He goes on to say that imminent danger almost takes priority over a fatality. The next level is complaint referrals.
“I will tell you most of the COVID-related inspections and COVID-related citations have come as a result of complaints or referrals,” shares Spurlock. “In some states, maybe it was a public health official who made some kind of a referral and then the programmed inspections is the trigger or the priority behind that.”
OSHA is conducting on-site inspections in some cases, he says, practicing social distancing and other safety precautions. Another option has been for employers to mail in documentation, such as photos.
“If it is a COVID-related complaint, OSHA might actually come out to see us observe social distancing, mask usage, those kinds of things,” Spurlock says. “It’s kind of been a mixed bag with OSHA coming out, and pretty much the programmed inspections are still occurring out there.
“So, don’t think just because COVID is going on that they’re not going to come out on a complaint or referral inspection, even for something that’s not related to COVID.”
So, what have been the primary COVID triggers for OSHA inspections?
“It’s been complaints, complaint inspections overwhelmingly,” Spurlock says. “Did the company violate a standard? That’s their big question.
“So if they come out and they’re doing an inspection, whether it’s COVID or whether it’s something else, they still have the burden of proving a violation that has always been there.
“In a lot of states, like Kentucky, there is a deputized member of the Department of Public Health, and they have a whole different standard you’re dealing with, so you have to look at that.
“But from a federal perspective, coming out on the COVID-related complaint, a standard has to apply to the condition. There are guidelines, and the general duty clause might come into play, but it is a recognized standard.”
These standards include recognized hazards, respiratory protection, record-keeping, personal protective equipment (PPE), signage, etc., he says as examples. Was there non-compliance and the employer knew or should have known? Have there been willful, repeat citations?
“You should try your best to avoid any kind of willful repeat citations,” Spurlock points out. “A general duty can be a willful citation, but they also have to show intentional knowing or voluntary disregard and indifference by the employer—employees reported the situation and OSHA can show that that the employer just chose to ignore it.”
What does OSHA have to do to fulfill its procedural obligations? It has to be in writing, he says. It has to be signed by the area director or the state equivalent. It has to describe the violation with particularity, and it has to be timely.
COMMON COVID CITATIONS
Spurlock then shared some of the more common COVID-related OSHA citations that have been given over the past year.
“Probably the most cited standard related to COVID-19 has been respiratory protection,” he says.
Different elements of the respiratory protection standard that have been used to issue citations include medical evaluations either not being performed or are incomplete or missing information.
“If an employer requires an employee to wear a respirator, then they have to comply with medical evaluations, fit testing, training—some of those elements have to be required,” Spurlock says.
Other citations include not having a written respiratory protection program, not giving training and providing a non-certified respirator for people who need it for their job.
“There are a lot of COVID-19 OSHA citations related to respiratory protection,” he points out. “That’s probably the one we’ve seen the most, certainly the most variety of citations.”
OSHA citations issued relative to PPE have mainly been about training on usage—in both the healthcare and non-healthcare sectors, Spurlock shares.
“The catch-all when there is no standard, OSHA can use the general duty clause to issue a citation, and that might be where employers are failing to maintain social distancing, put up barriers, do what they need to do to protect workers from COVID exposures,” he says.
The next area of common COVID citations regards record-keeping and reporting.
“A lot of folks have thought about COVID as this novel thing relative to record-keeping and reporting, and OSHA has sent out a lot of guidance, and the record-keeping standard hasn’t been changed because of COVID,” says Spurlock.
“The record-keeping standard already took into account pandemics and illnesses beyond the common cold and flu. The big thing is determining whether or not the COVID-19 was a work-related exposure, and that can be difficult.”
A work-related case will trigger reporting obligations, if an employee contracting COVID results in any of the recordable triggers such as a fatality, medical care that is not first aid, etc.
Spurlock shares that he has had questions about training in regards to COVID regulations when in-person or hands-on training is required.
“If you’re going to get some discretion because COVID has hampered the resources, the ability to put people together, you have to show some good faith,” he says.
“Something like forklift training, I think that’s going to be a really big burden for the employer to show good faith as to why they didn’t do hands-on training when you know social distancing, wearing masks and those other things that you could do.”
RECENT OSHA COVID GUIDANCE
Spurlock concluded his presentation by sharing the most recent OHSA guidance, which calls for employers to have a COVID action program. The elements of this plan, he says, include assigning a coordinator, a method to identify/assess exposure and a hierarchy of controls.
“The hierarchy of controls, if that’s a new term for you, is we always look for elimination substitution as a first solution to a hazard—not PPE,” Spurlock shares. “PPE is always a last line of defense.
“They want to look to see that you know what the guidance is, that employers will try to eliminate exposure, not just get PPE. How do you handle high-risk populations? How do you communicate the COVID-related protocols within the organization?
“They’re looking that you consider all the languages that may be spoken in your workplace, an education and training component, quarantine or isolation measures. How do you minimize the impact on quarantined workers? And that means anything from can we allow them to work at home to dealing with their mental status during this.”
The program also needs to address cleaning and disinfecting, screening and testing, record-keeping, and reporting.
“This is something that I haven’t seen in the prior guidance, but it certainly stressed in the one that was issued in January, it has a whole section on anti-retaliation and a process for it being anonymous,” says Spurlock.
“Also, how will you handle vaccination? It doesn’t say anything about mandatory vaccination, but if you are going to have the program, how do you manage vaccination, and then also provisions so that you don’t distinguish vaccinated workers from those who are not vaccinated.”
In addition, he says there are other components outside that program where the guidance talks about what to do with face covering, social distancing and ventilation.
“Ventilation has been a big question since we can’t monitor COVID in the air,” Spurlock says. “In essence, it’s encouraging employers, and I’m really summarizing this, to do what they can to maximize ventilation effectiveness at the workplace.
“I will tell employers if you have ventilation systems that are not working like they should, that’s certainly ripe for a general duty citation for not doing what you can to prevent COVID-related exposure. If you’ve got some things that aren’t working or are out of service, that’s low-hanging fruit for OSHA.”
PPE requirements, hygiene practices, supplies and cleaning are other low-hanging fruit.
Spurlock points out that some states have put emergency temporary standard state OSHA acts in place that employers should be aware of during the pandemic.
The key for employers is to stay informed.
“This could all change,” he says. “I anticipate that work will begin on a permanent standard that will see enhanced enforcement from the new OSHA administration.”
Have a question or comment? E-mail our editor Matt Poe at [email protected].