COVID-19’s Implications for OSHA and the NLRA

Jennings, Strouss & Salmon, PLC

Recent news regarding the COVID-19 pandemic brings long-awaited optimism as signs of improvement begin to show. According to recent statistics from the Center for Disease Control and Prevention (CDC), 40.7% of the Arizona population has received at least one dose of the COVID-19 vaccine, with 28.9% being fully vaccinated. The number of confirmed cases and deaths related to COVID-19 continues to decline as well. As conditions seem to improve, businesses are eager to re-open their doors and bring back their workforce in an effort to return to “normal.” However, employers must be wary not to run afoul of key health and safety protections in doing so.

Under the Occupational Safety and Health Act of 1970 (OSHA) and the National Labor Relations Act of 1935 (NLRA), employees are entitled to certain protections in the workplace.

Under OSHA, employers are required to provide their employees with a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” With President Joe Biden’s administration, employers can expect heightened OSHA enforcement activity related to COVID-19 exposures and expect more aggressive OSHA investigations of such claims.

On January 21, 2020, President Biden issued an Executive Order on Protecting Worker Health and Safety directing the Secretary of Labor, among other things, to launch a National Emphasis Program (NEP) to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk, and on employers that retaliate against employees who complain about unsafe or unhealthy working conditions. This means industries with a high risk for COVID-19 hazards, such as hospitals, retirement facilities, grocery stores, restaurants, correctional facilities, as well as other industries in general, can expect more frequent, in-person inspections and stricter enforcement of OSHA standards and regulations, with possible fines for non-compliance as well.

Since the start of the COVID-19 pandemic, we have already seen an uptick in employee complaints alleging that they have been retaliated against for voicing their concerns about COVID-19 hazards in the workplace. This happened more often to employers who had an in-person workforce during the pandemic. Now, we are seeing more complaints arise among the employers that allowed remote work during the pandemic who are now bringing people back into the office. Some of those employees do not yet want to return and are claiming they have been retaliated against for complaining that the workplace environment is not safe enough to return to. As a result, during this sensitive transitional period, employers must ensure they are especially clear about the reasons underlying any action they take against employees and are careful not to retaliate against their workers for voicing such concerns.

The NLRA also affords workers the right to act together to address work-related issues, such as safety concerns in the workplace. Two or more employees banding together to discuss these work-related issues – or one employee acting on behalf of the group – is considered a protected concerted activity under the Act. During the time of COVID-19, a protected concerted activity can take the form of: openly calling for paid sick leave; circulating a petition asking for stronger health and safety protections; employees requesting to work-from-home or requesting not to return to the office after having been working remotely due to risks surrounding COVID-19; employees garnering support to walk out in protest of critically unsafe working conditions; employees discussing or protesting against a mandatory vaccination policy (or the lack thereof); and the like.

Similar to the protections under OSHA, under the NLRA, an employer cannot lawfully interfere with, restrain, or coerce employees about their protected concerted activity or the exercise of other rights under the Act. So, as with OSHA, employers need to be extra cautious right now that they are clear about the reasons underlying any action they take against employees who raise concerns relating to safety and COVID-19. In establishing COVID-19 protocols in the workplace, an employer can abide by both OSHA and the NLRA regulations by implementing protocols that balance health and safety measures while being cautious not to infringe on protected activities. Best practices of this can include implementing a “social distance policy” in the workplace that encourages workers to maintain six-feet of distance when conversing with one another, but not instructing employees to not communicate with each other at all; or by discouraging the sharing of communal office supplies and printed materials to avoid the transmission of COVID-19, but not instructing employees that they are prohibited from distributing or sharing written materials altogether.

Although employers are ready to see a return to normalcy and bring their workforce back in full swing, we are not out of the woods quite yet. While the coronavirus pandemic continues to persist, employers need to be cautiously aware of the safety and wellbeing of their workplace and employees, and be careful not to punish employees for actions that look like exercising a right under OSHA or the NLRA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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