Frequently Cited OSHA COVID-19 Violations And What Employers Can Do Differently

Haynsworth Sinkler Boyd, P.A.

Haynsworth Sinkler Boyd, P.A.

From the start of the Coronavirus pandemic through December 31, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued citations from 300 inspections for Coronavirus-related violations, resulting in proposed penalties totaling $3,930,381.

These inspections were initiated following complaints, referrals, or fatalities in hospitals and the healthcare industry, nursing homes, and meat/poultry processing facilities. Below is a brief discussion of the most frequently violated and cited standards to help employers better understand these standards and equip themselves to protect workers.

Click here to access the OSHA Law and Regulations website.

1. Respiratory Protection

Many of the frequently cited standards and requirements violated stem from the Respiratory Protection standards. This section requires employers to institute a respiratory protection program where it is difficult to prevent atmospheric contamination that could lead to breathing contaminated air. Employers are frequently being cited for the following:

  • not establishing a written respiratory protection plan,
  • not providing a medical evaluation before the working was fit-tested or used the respirator, or
  • not providing the necessary training, which must be comprehensive, understandable and recur annually.

OSHA temporarily exercised some enforcement discretion towards respirators in light of the essential need for adequate supplies during the pandemic. Some of this discretion included certain fit testing provisions, the use of respirators that are beyond their manufacturer’s recommended shelf life, extended use and reuse of respirators, and the use of alternative respirators certified under standards of certain other countries and jurisdictions. For OSHA to exercise this discretion, employers were required to demonstrate and document good-faith efforts to comply with OSHA standards.

2. Recording and Reporting Occupational Injuries and Illnesses

The next set of violations of OSHA standards stem from employers either not reporting a fatality to OSHA within eight hours after the death of any employee as a result of a work-related incident or not keeping records of injuries, fatalities and illnesses that were “work-related.”

An employer must "report a fatality to OSHA if the fatality occurs within thirty (30) days of the work-related incident." For cases of COVID-19, the term "incident" means an exposure to SARS-CoV-2 in the workplace. Therefore, in order to be reportable, a fatality due to COVID-19 must occur within 30 days of an exposure to SARS-CoV-2 at work. The employer must report the fatality within eight hours of knowing both that the employee has died, and that the cause of death was a work-related case of COVID-19.

3. Personal Protection Equipment (PPE)

Interestingly, most of the citations under these sets of requirements and standards were issued to the healthcare sector and involved medical facemasks, face shields and gowns. The most common citations were for failures by employers to assess the workplace to determine if hazards are present or are likely to be present which require the use of PPE, and select PPE that properly fits each affected employee. Even if the employer made those assessments, employers were also cited when they did not properly document in writing that the required hazard assessment had been performed.

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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