COVID-19 Enforcement: A Guide for EHS Professionals

Will workplace safety and health inspectors show up at your facility if workers contract coronavirus disease 2019 (COVID-19) and one of them files a complaint? Yes, in fact, it’s already happened.

Although there are no federal standards for coronavirus exposure or airborne infectious disease, COVID-19 has become a recognized workplace health hazard since the pandemic was declared in March. You can be cited for failing to protect your employees from the coronavirus under the General Duty Clause of the Occupational Safety and Health (OSH) Act of 1970.

Section 5(a)(1) of the OSH Act reads: “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

The federal Occupational Safety and Health Administration (OSHA) has cited several employers under the General Duty Clause for failing to protect their employees from the coronavirus.

OSHA cited JBS Foods Inc. of Greeley, Colorado—operating as the Swift Beef Company—for failing to protect employees from exposure to the coronavirus. The agency cited JBS Foods with a violation of the General Duty Clause for failing to provide a workplace free from recognized hazards that can cause death or serious harm and proposed penalties of $15,615, the maximum allowed by law.

The agency conducted a coronavirus-related inspection and cited the company for failing to provide an authorized employee representative with injury and illness logs in a timely manner following OSHA’s inspection.

The agency cited Smithfield Packaged Meats Corp. in Sioux Falls, South Dakota, for a General Duty Clause violation for failing to protect employees from exposure to the coronavirus. OSHA proposed a penalty of $13,494. At least 1,294 Smithfield workers contracted the coronavirus, according to the agency, and 4 employees died from the virus in spring 2020.

Respiratory Protection

In addition to the General Duty Clause, the agency also is enforcing all federal standards, including the respiratory protection standard despite ongoing shortages of N95 filtering facepiece respirators.

OSHA cited Bergen New Bridge Medical Center for respiratory protection violations at its Paramus, New Jersey, location. The hospital failed to fit test tight-fitting facepiece respirators on employees who were required to use them, train employees on proper respirator use, and ensure employees understood when to wear a respirator, according to OSHA. The agency proposed penalties of $9,639.

OSHA cited Georgetown Dental LLC in Georgetown, Massachusetts, for respiratory protection violations, proposing penalties of $9,500. The agency cited the dental practice for failing to provide medical evaluations and initial fit testing for employees required to wear N95 respirators as protection against the coronavirus; a lack of written programs for bloodborne pathogens (BBP), hazard communication, and respiratory protection; and insufficient bloodborne pathogen training and controls and inadequate eyewash stations.

OSHA cited Hackensack Meridian Health for a serious violation for failure to provide respirators to resident-care employees at its North Bergen, New Jersey, location in March. Employees without respirators were caring for residents who were exhibiting symptoms of coronavirus infection, according to the agency. OSHA proposed penalties totaling $28,070. Other violations included failure to conduct respirator fit testing, effective training, and compliant medical evaluations for the period after the employer began providing respirators to the employees and requiring their use.

The agency cited Ohio-based healthcare provider OHNH EMP LLC for violations of the respiratory protection standard after the company reported the coronavirus-related hospitalization of 7 employees. The agency proposed penalties totaling $40,482. The agency also issued the company a Hazard Alert Letter regarding the company’s practice of allowing N95 respirator use for up to 7 days or until damaged or soiled. The company also had instructed employees to wear surgical masks issued each day over their respirators. Wearing a surgical mask over a respirator could interfere with the respirator’s inhalation and exhalation resistance—factors the National Institute for Occupational Safety and Health (NIOSH) tests respirators for in addition to particle filtration when certifying respirators.

The agency cited three of the company’s locations for serious violations of the respiratory protection standard’s requirements, including lack of a comprehensive written respiratory protection program and medical evaluations of employees provided with and instructed to wear respirators.

State Enforcement

State workplace safety and health agencies also have cited employers for inadequate COVID-19 protections. Governors in Nevada and Oregon have ordered their workplace safety agencies to ensure employers’ compliance with their states’ COVID-19 restrictions in addition to enforcing their states’ occupational safety and health laws. California and Michigan have cited several employers for coronavirus-related violations.

The California Division of Occupational Safety and Health (Cal/OSHA) announced it had cited 11 employers in agriculture, food processing, health care, meatpacking, and retail for not protecting employees from coronavirus exposure.

Cal/OSHA conducted a complaint-initiated inspection of DL Poultry, Inc., of Monterey Park and proposed penalties of $51,190 for COVID-19 and other violations. The agency proposed penalties of $9,000 following a complaint-initiated inspection of Olson Meat Company, a meatpacking facility in Orland, finding the employer did not physically distance employees at least 6 feet apart in processing areas or install plexiglass or other barriers between workers.

The agency cited a frozen food manufacturer and a temporary employment agency for failing to protect hundreds of employees from COVID-19 at two frozen food plants. The employers did not implement procedures to have employees work at least 6 feet away from each other or install barriers and did not investigate employees’ COVID-19 infections that included more than 20 illnesses and 1 death.

The agency has cited agricultural labor firms with COVID-19 and other violations, including:

  • Michel Labor Services Inc. for COVID-19 and heat illness prevention violations and proposed penalties of $11,700 following an inspection of a Dixon worksite; and
  • Serve Max Farm Labor Contractor with both COVID-19 and heat illness prevention violations after an enforcement task force inspection of a Vacaville agricultural worksite, seeking penalties of $11,250.

California also has an airborne transmissible disease (ATD) standard that applies to healthcare facilities, as well as correctional facilities, diagnostic laboratories, and police and public health services. Under the ATD standard, California employers must protect workers at healthcare facilities and other services and operations from airborne diseases like COVID-19 and tuberculosis (TB), influenza, and pertussis (whooping cough).

Since the pandemic began, Cal/OSHA has cited several employers under the ATD standard, including:

  • Gateway Care & Rehabilitation Center, a skilled nursing facility in Hayward, for exposing nurses and housekeeping workers to COVID-19 when it failed to provide necessary personal protective equipment (PPE);
  • Santa Rosa Police Department for failing to implement required screening and referral procedures for persons exhibiting COVID-19 symptoms and failing to report to Cal/OSHA multiple serious illnesses suffered by employees who contracted COVID-19; and
  • Sutter Bay Hospitals’ CPMC Davies Campus for not ensuring its healthcare workers in administrative medical offices and security guards in the emergency department wore respiratory protection, as well as medical staff without N95 masks or other proper protection while performing a medical procedure in the operating room on a suspected COVID-19 patient.

The Michigan Occupational Safety and Health Administration (MIOSHA) cited 19 businesses with serious “general duty” violations for failing to protect employees from coronavirus exposures. Violations cited under the state’s reopening guidelines included:

  • Lack of a preparedness and response plan and failure to designate a COVID-19 workplace supervisor.
  • Failure to require face coverings when social distance could not be maintained.
  • Failure to train employees on COVID-19 guidelines.
  • Failure to conduct a daily health screening protocol and maintain/retain documentation for training, entry screening, and contact tracing; and
  • Failure to post signs, markings, and barriers at the time clock and provide cleaning supplies for high-touch surfaces.

OSHA Enforcement

OSHA also investigates whistleblower complaints when workers report employer retaliation for raising concerns about safety and health conditions. Employees are encouraged to file whistleblower complaints with the agency, which OSHA will investigate. You might consider establishing and implementing an antiretaliation program that conforms to OSHA’s guidelines.

OSHA’s general employer guidance remains the Guidance on Preparing Workplaces for COVID-19 (OSHA 3990, 2020).

In addition to the General Duty Clause, PPE, and respiratory protection standards, all employers must report occupational injuries and illnesses. COVID-19 is a recordable illness under recordkeeping requirements if the case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC), and work-related. Employers must report work-related fatalities to OSHA within 8 hours and work-related in-patient hospitalizations within 24 hours.

OSHA authorized its area offices and compliance safety and health officers (CSHOs) to exercise enforcement discretion by considering an employer’s reasonable efforts to determine work-relatedness and the evidence of work-relatedness available to the employers to determine whether COVID-19 was contracted at work. Whether a citation is issued for a reporting violation depends on the CSHO’s assessment of the employer’s good-faith efforts.

The agency is prioritizing inspections for COVID-19 fatalities and imminent-danger exposures but may not initiate an on-site inspection following a formal complaint alleging SARS-CoV-2 exposure in a workplace where employees are engaged in medium- or lower-exposure-risk tasks. On-site inspection is at the discretion of the area director.

OSHA also has authorized area offices and CSHOs to exercise discretion in the enforcement of the agency’s standard because employees, consultants, or contractors who normally provide auditing, equipment inspections, testing, training, and other essential safety and industrial hygiene services may not be available due to business closures, facility visitor prohibitions, state limitations on group sizes, restrictions on travel, and stay-at-home or shelter-in-place orders.

The agency is exercising some discretion in enforcing annual fit-testing requirements for respiratory protection, but the respiratory protection standard remains in effect, as are the respiratory protection provisions of all substance-specific standards like those for asbestos and lead.

If you run out of N95 respirators, you will need to control exposures through other means, reducing employee exposures below the permissible exposure level or postponing the task or process altogether until you can obtain more respirators.

Healthcare facilities also are subject to OSHA’s BBP standard. However, the BBP standard applies to human blood and other potentially infectious materials and does not cover respiratory secretions that may contain the coronavirus.

For more information or assistance with your Environmental and Health & Safety regulatory compliance needs, contact Ralph Carito at Total Environmental & Safety, LLC (Total) at rcarito@TotalEnviron.com or 908-442-8599.

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