In a new effort to use existing regulations to respond to the ongoing public health emergency, OSHA cited an Ohio healthcare company for alleged serious violations of OSHA’s respirator regulations. OSHA launched an investigation at three of the employer’s healthcare facilities after seven employees were hospitalized with COVID-19.
Even though the employer provided the necessary N95 respirators to its healthcare workers, OSHA alleges that the employer committed two violations of OSHA’s respirator standard: (1) failure to have a written respirator program and (2) failure to provide a medical evaluation to determine employees’ ability to use a respirator in the workplace. OSHA’s press release announced that it cited each of the employer’s three facilities for the same two violations and a total proposed penalty of $40,482.
While OSHA has up to six months to issue a citation, the Administration’s enforcement activity in response to the COVID-19 pandemic to this point has been modest, and the Administration’s critics have called on OSHA to take more aggressive enforcement actions. Similarly, OSHA has faced continued scrutiny to issue emergency regulations that address worker protections against the spread of COVID-19. However, the Administration has consistently pushed back against the need for emergency regulations and argues that its existing regulations—such as the respirator standard cited here—are sufficient to address the risks of COVID-19.
OSHA’s enforcement actions in this matter could suggest greater enforcement is on the horizon. OSHA’s Principal Deputy Assistant Secretary, Loren Sweatt, even released a statement highlighting the Administration’s enforcement action, which suggests that the citation has gained attention from OSHA’s leadership in Washington, D.C.
These citations demonstrate that even where employees provide necessary safety equipment, like N95 respirators for health care workers, they still must comply with all technical aspects of OSHA’s regulations. OSHA’s regulations encompass a wide scope of detailed obligations for employers, and even employers who strenuously work to provide a safe workplace can inadvertently violate a regulation.
For now, it does seem that OSHA is carefully cherry-picking cases with seemingly bulletproof facts and has targeted the healthcare industry because of front-line workers’ obvious exposure to COVID-19. In this instance, the cited employer allegedly had seven employees hospitalized due to COVID-19. Those types of facts definitely put a target on an employer’s back. As the numbers of COVID-19 cases rise around the country, particularly in places that were not hard hit at the beginning of the pandemic in March and April, we are likely to see an uptick of enforcement activity from OSHA.
Just because OSHA issues citations, however, does not mean they are valid. The Agency is under pressure to demonstrate that it remains effective in combatting the COVID-19 pandemic without a specific infectious disease standard.