As the Occupational Safety and Health Administration (OSHA) enters its new fiscal year, an uptick of enforcement activity from OSHA related to the COVID-19 pandemic is expected.
OSHA began opening many COVID-19 inspections in April 2020, and it has six months in which to issue citations. The ending of OSHA inspections in these cases and OSHA’s inclination toward issuing citations means that all employers, particularly those in the healthcare, personal care, and residential and group living spaces, should be prepared for possible citations.
Throughout the COVID-19 pandemic, OSHA has been subjected to intense scrutiny from and criticism by unions and pro-worker groups. They had even sued the agency to try to get it to pass an emergency temporary standard for COVID-19. The agency has repeatedly defended its actions, claiming it has other enforcement tools (such as the respirator standard and the general duty clause) that will give it much-needed flexibility in responding to this novel coronavirus.
This scrutiny and criticism likely have led OSHA to announce a policy change on September 18, 2020, with respect to making public citations. OSHA announced it would no longer release citations on its website and that a Freedom of Information Act Request would be required to obtain such documentation.
(The press release announcing that policy change is missing from OSHA’s website. Further, it appears OSHA has relocated at least some of its press releases regarding issuance of COVID-19-related citations to a different section — “In Case You Missed It” — under such positive-sounding title as “ICYMI: U.S. Department of Labor Acts to Help American Workers and Employers During the Coronavirus Pandemic.”)
Under the policy change, employers may have fewer concerns about negative publicity from OSHA’s announcing issuance of COVID-19-related citations in press releases on its website, making the citations publicly available. However, it becomes much more difficult for anyone to obtain information regarding OSHA’s issuance of citations. Now, a proficiency in navigating the various search features on OSHA’s website is needed to obtain such information. There is no central repository for all of OSHA’s COVID-19-related citations and trying to find the citations can be an onerous and time-consuming task. For example, searching a North American Industry Classification System (NAICS) code for a specific date range of inspections would yield a list of results that must be scrolled through to determine if OSHA has issued citations in those cases. Then, individual inspection numbers must be checked for the standards cited (and researching the regulations for the standards), the amounts of the penalties, and the status of the case (such as whether it is settled or under contest).
A search under NAICS sector code 62, for healthcare and personal care, which includes hospitals, nursing homes, doctor’s and dentist’s offices, and residential living facilities, from April 1, 2020 – September 28, 2020, revealed that more than 30 COVID-19-related citations have been issued. OSHA has prioritized these employers for inspections when receiving complaints or reports of hospitalizations or fatalities from COVID-19.
To date, federal OSHA and its state counterparts have issued citations related to the selection of respirators, medical evaluations, and fit testing, as well as recording-and-reporting violations, and even under the general duty clause for failure to follow industry guidance on COVID-19-related precautions, such as social distancing.
Since May 12, 2020, both federal and state safety and health agencies have issued such citations in Arizona, California, Connecticut, Georgia, Indiana, Iowa, Louisiana, Massachusetts, Michigan, New Jersey, New York, Ohio, South Carolina, Tennessee, Virginia, and Washington. Most of these citations have relatively low penalty amounts, and the recording-and-reporting citations are classified as other than serious.
Thus far, employers have been settling these citations informally, accepting the violations and, perhaps, obtaining a reduced penalty amount. While it may sound like a good deal, saving several thousand dollars and moving on quickly can cost an employer much more over the long term.
The federal and state agencies can continue to issue these types of citations, even when employers may have legal arguments the citations are not valid. Employers that settle the citations quickly could be leaving themselves vulnerable to repeat or willful citations in the future, particularly where they have multiple establishments.
OSHA is feeling the pressure to prove it has been responding to the COVID-19 pandemic effectively, even without an infectious disease or emergency temporary COVID-19 standard. The quiet policy change makes it more difficult for the pro-worker groups that say OSHA is not doing enough to keep tabs. It also makes it more difficult for employers that believe OSHA should not be issuing citations when there are legitimate challenges obtaining personal protective equipment and employers are making good faith efforts to keep up with the shifting guidance.
Expect that more citations are coming from the enforcement agency. They are coming regardless of how cooperative an employer was with an OSHA inspection. They are coming regardless of the struggles many employers had faced, and still face with the global shortage of N-95s and accessibility to medical evaluations for respirator use and fit testing, at least during the early months of COVID-19. OSHA says it will use discretion and consider an employer’s good faith efforts to obtain respirators, medical evaluations, and fit testing. However, based on citations thus far, citations are still likely even when employers are trying their best to follow the ever-changing and, in some instances, flip-flopping guidance from both the Centers for Disease Control and Prevention and OSHA. To the extent OSHA is relying on guidance documents to support its citations, guidance documents do not have the force of law (see Executive Order 13891) and are not binding on employers.
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