While new COVID-19 cases are receding across the country and some states are beginning to relax restrictions, employers should anticipate new enforcement and regulatory action, as the vaccine effort expands and new variants manifest. We’ve examined recent changes in policy-making and trends in enforcement.
New OSHA COVID Orders
In January, an executive order was signed, calling for OSHA to take action to further safeguard American workers from COVID-19. The order sets a few notable things in motion:
OSHA will issue new COVID-19 guidance to employers.
OSHA will consider issuing emergency temporary standards (ETS) with respect to mask-wearing and must issue such standards no later than March 15th.
OSHA will review ongoing COVID-19 enforcement action and recommend changes to better protect workers and ensure fair, consistent enforcement.
OSHA will launch a national program to focus enforcement on COVID-19 violations that pose the most risk to broader workforce populations.
OSHA is directed to orchestrate a multi-language public campaign to inform workers of their rights under law, with emphasis on communities “hit hardest” by the pandemic.
OSHA will work with state-run OSHA programs to support offering workers guidance and protective standards consistent with federal, DOL-OSHA regulation.
OSHA will work with other federal agencies like the Department of Agriculture to explore ways to extend protections to employees who are not now covered by the Occupational Safety & Health Act.
OSHA’s New Guidance on Mitigating & Preventing the Spread of COVID-19
OSHA has since taken action and published its updated guidance. Intended for general industry employment settings, the big takeaway was OSHA’s extensive outline for COVID-19 Prevention Programs.
A major piece of the prevention program outline included a new hierarchy of controls for limiting the spread of COVID-19:
A. Eliminating the hazard by separating and sending home infected or potentially infected people from the workplace;
B. Implementing physical distancing in all communal work areas [includes remote work and telework];
C. Installing barriers where physical distancing cannot be maintained;
D. Suppressing the spread of the hazard using face coverings;
E. Improving ventilation;
F. Using applicable PPE to protect workers from exposure;
G. Providing the supplies necessary for good hygiene practices; and
H. Performing routine cleaning and disinfection.
Each of the listed hierarchy of controls is explained with greater detail throughout the guidance. Other notes of interest include: detail on reporting COVID-19 exposure on OSHA 300 logs; employer sponsored ‘no-cost’ vaccine provision; how to determine exposure and quarantine protocol; assignment of a workplace coordinator responsible for COVID-19 issues on behalf of the employer.
It is beneficial for employers to have clear guidance from OSHA on how employers are expected to navigate the myriad issues associated with COVID-19; many employers have been cited in the past few months under the catch-all General Duty Clause.
Next, employers should anticipate OSHA to issue an emergency temporary standard by March 15th.
OSHA COVID-19 Penalties Grow 230%
Through October of 2020, OSHA had issued COVID-related fines totaling $1,222,156 to 85 companies. Since then – in four months – OSHA issued an additional $2,812,132 in penalties, through January 15th, 2021. This brings OSHA’s total to $4,034,288 from over 300 inspections.
OSHA is actively issuing citations for non-compliance with the following requirements:
Implementation of a written respiratory protection program;
Providing medical evaluations, respirator fit testing, training on the proper use of a respirator and personal protective equipment;
Reporting a injury, illness or fatalities;
Recording injury or illness on OSHA recordkeeping forms; and
Compliance with the General Duty Clause of the Occupational Safety and Health Act of 1970
While that 252% rise in inspection activity was relatively steep, the sudden escalation paralleled the spiking trend in newly reported coronavirus cases across the nation at the end of 2020. Based on a holistic view of OSHA activity, employers may expect this surge in enforcement efforts to hold for the first half of the new year and be prepared for changing standards that tighten restrictions or protections.
Major State-Issued COVID-19 Penalties
Regulators representing state-run OSHA programs have been making national news with their attempts to curb the spread of the coronavirus by cracking down on employers.
In December, the State of Washington issued over $2 million dollars in fines to a farming operation after two of its agricultural employees died of COVID-19. The Division of Occupational Safety and Health began investigating claims in the summer, after tips from anonymous, employee whistleblowers. These large fines covered two dozen violations, excluding a previous penalty for $13,200 related to failure to follow social distancing safeguards. Notable penalties were assessed for failing to report the death of a temporary worker, for transporting excessive numbers of workers together, and for unsafe housing and “camp” conditions for the farm’s migrant laborers. There were 24 willful violations in total, each a max penalty of $84,000. Washington has issued emergency temporary agricultural worker housing rules, and the state’s governor has allocated $43 million dollars to protect undocumented farm workers.
In September, CAL/OSHA issued several large, COVID-19 related fines, along with smaller citations across a variety of industries. One agricultural business was fined $222,075, and its temporary staffing operation affiliate was fined $214,080. The agency issued fines to 11 other establishments ranging from $2,000 to over $50,000.
Also, impacting business travelers, the seafood industry and the sport tourism industry, Alaska announced fines of up to $25,000 for travelers who fail to strictly follow the state’s coronavirus protocol involving mandatory testing and self-quarantine.
Aside from travel restrictions, states and cities have enacted fines for mask non-compliance, curfews intended for ‘lockdown’ periods, limits to the size of gatherings, outdoor service rules for the food and beverage industry, and protective barriers for retail workers.
OSHA’s New Debt Collection Program & Annual Penalty Increases
On December 22nd, OSHA announced a familiar approach aimed at accelerating collection of citation fines. Under the new program, OSHA will send three letters to the violator if payment isn’t received by the due date(s), at 7, 30, and 60 days. Two weeks after the due date passes, OSHA will call the violator. For any citation where payment is not made, OSHA will place the company in question on a priority inspection list.
Also, effective on January 15th, OSHA penalties increased to reflect cost-of-living inflation. The new maximum penalty amounts apply to any enforcement action assessed after January 15th.
The max penalty for serious and other-than-serious violations jumped by $159 dollars to $13,653 for each violation.
The max penalty for willful or repeated violations climbed $1,595 dollars to $136,532 for each violation.
Under the Federal Civil Penalties Inflation Adjustment Act Improvements Act, OSHA and other regulatory bodies may issue “catch-up” rules to increase fines, fees, and penalty amounts, in order to sustain the intended deterrent effect.
Educating Workers on COVID-19: Hazards, Precautions & Protocol
OSHA’s recent guidance includes training and education as part of its emphasis on COVID-19 prevention program development. In addition to best practices for avoiding transmission of the virus, physical safeguards, and preventative hygiene efforts, OSHA has published What Workers Need to Know About COVID-19. Organizational policies specific to COVID-19 and reporting methods are also components of the education and training guidance.
Finally, OSHA states that workforce education should include, “Some means of tracking which workers have been informed and when.” ClickSafety offers accessible, trackable, online training for COVID-19 to support the workforce education needs of employers approaching alignment with OSHA’s guidance.