COVID-19: Whatever Happened to OSHA?

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From the early days of the pandemic, we’ve covered the importance of having an Infectious Disease Preparedness and Response Plan based on existing OSHA Guidance. That Plan – based on CDC guidance, incorporating state-specific measures, and updated to reflect changes in either or both – remains your best protection in the event of employee complaints to OSHA about the safety of your workplace.

However, the concept of a Preparedness and Response Plan has been around for years, and while OSHA Publication 3990-03 does tie its plan guidance directly to COVID-19, many people – employers and employees alike – wonder why OSHA does not seem to be playing a more prominent role with regard to pandemic-related workplace safety.

Has OSHA Done Enough?

The question is understandable. OSHA has been criticized extensively for not investigating enough workplaces, not filing enough citations for safety and health violations, and not punishing employers harshly enough. The greatest criticism of OSHA stems from its decision not to promulgate any emergency standards related to COVID-19, and to rely on guidance instead. OSHA’s position is that rules take far too long to issue, and even temporary, emergency rules are too rigid at a time when flexibility is essential in light of the virus’s rapid evolution, our evolving knowledge, and our country’s reaction to it.

OSHA notes that it has issued significant guidance for employers, including a growing list of specific industries. Various groups have sought to challenge OSHA’s approach in court with results that generally favor deferring to OSHA’s discretion regarding how best to protect worker safety and health.

OSHA is the Only Sheriff in Town

Because OSHA has exclusive regulatory authority over workplace safety in the U.S., states are not allowed to regulate workplace safety unless they have OSHA’s approval. Twenty-two states have full-blown OSHA-approved plans, and six have plans limited to state and local government workers. In the states where Pierce Atwood has offices (ME, NH, MA, RI, and DC), only Maine has an OSHA-approved state plan, and it’s one of the six that is limited to public sector workplaces. Therefore, to the extent that political pressure may be mounting for state action in the face of a perceived lack of action at the federal level, there is little that states can do without pre-existing OSHA-approved workplace safety and health programs.

OSHA Clarifies Reporting Confusion

The OSHA guidance on an employer’s duty to report COVID-19 cases has evolved during the pandemic. Generally speaking, employers must report certain occupational injuries and illnesses, such as fatalities and in-patient hospitalizations. The applicable federal regulation requires that employers report a work-related fatality within eight hours if the fatality occurs within 30 days of the event precipitating it. For illnesses, employers have 24 hours to report an in-patient hospitalization, provided the hospitalization occurred within 24 hours of the work-related event (e.g., exposure) that led to the need for hospitalization.

While many infectious diseases are not reportable, OSHA has consistently maintained that COVID-19 cases must be reported in certain situations. However, which situations require reporting has been a moving target since spring.

Initially, only employers whose employees’ job duties exposed them to COVID-19, such as health care workers, were required to report work-related COVID-19 hospitalizations or deaths. In May, that changed to all employers. In July, OSHA further expanded the reporting obligation to include all COVID-19 hospitalizations or deaths, work-related or not, and irrespective of the time between exposure and the reportable event.

Then, on October 1, 2020, OSHA updated its FAQs yet again, this time in a more reasonable way. Employers must now report cases that involve hospitalizations within 24 hours of a workplace exposure to COVID-19. If an employer learns of the link between hospitalization and exposure after the fact, it has 24 hours to report from when it has that information. For fatalities, the requirement is to report within eight hours any fatality that occurs within 30 days of a workplace exposure.

Stick to the OSHA Basics

The frequency of COVID-19 deaths and hospitalizations is decreasing, and we certainly hope you have no such cases to report to OSHA. If you have had such cases in the past, but have failed to report them in the time required by OSHA, you still have a duty to report, although you will essentially be admitting to a violation when you do. OSHA has been generally quite forgiving of employers trying in good faith to operate safely and in compliance during the pandemic.

There are certainly two sides to the argument as to whether OSHA has done enough to promote COVID-19-related workplace safety and health. However, for better or worse, OSHA remains the single regulatory body in our region with authority for workplace safety. Employers that have created, kept up-to-date, and enforced Preparedness and Response Plans, and that have reported according to the October guidance described above, will continue to be in the best position to respond to any complaints or citations from OSHA, and to keep their employees as safe as possible until the pandemic winds die down for good.

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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