The Occupational Safety and Health Administration (OSHA) tweeted last week that it has cited more than 200 employers for coronavirus-related violations, with penalties totaling nearly $3 million. Amidst this wave of enforcement activity, OSHA issued a press release and accompanying guidance and a one-pager on November 6 to advise employers about “lessons learned,” based on the most common violations issued to employers so far during the pandemic.
Below are the requirements that OSHA reports employers have most frequently failed to follow, which deal with respiratory protection, personal protective equipment (PPE), and record-keeping and reporting obligations:
OSHA’s enforcement has primarily focused on hospitals and health care employers, nursing homes and long-term care facilities, meat/poultry processing plants, and other workplaces where COVID-19 presents a particular threat to workers or where mass outbreaks have occurred. However, OSHA’s enforcement is not limited to these workplaces, and employers in all industries must implement plans to protect employees from workplace exposure to the virus.
With respect to the respiratory protection and PPE requirements, it is important to keep in mind that OSHA does not consider cloth masks or face coverings to be PPE, although states and localities have mandated that workers wear face masks indoors and where social distancing cannot be maintained. OSHA’s respiratory protection requirements, including medical evaluations and fit testing for respirators, are required for health care workers who encounter COVID-19 patients as well as other employees at high risk of exposure to COVID-19. In addition to respirators, other PPE, such as gloves, gowns, face shields, and goggles, may also be necessary to protect workers.
The other most commonly cited violations involve failure to report COVID-19-related fatalities to OSHA within eight hours of finding out about them, as well as keeping records of work-related COVID-19 fatalities, hospitalizations, and illnesses. We have previously discussed OSHA’s evolving reporting and record-keeping guidance for COVID-19 illnesses, and it is important that all employers investigate positive COVID-19 cases to determine whether illnesses are work-related.
For additional guidance, please reach out to your Foley & Lardner LLP labor and employment attorney.
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