OSHA is Issuing Large Fines to Companies for COVID-19 Related Violations

10/29/2020

OSHA recently issued a press release disclosing that the agency has issued over $1.6 million in fines to employers since the beginning of the COVID-19 pandemic. This latest press release is yet another example of how many employers have struggled to keep up with their workplace safety obligations, whether it’s addressing work-related exposures to the SARS-CoV-2 virus, or managing their “normal” routine safety management tasks.

Let’s take a deeper dive into the OSHA press release to see what take-home lessons there may be for your business.

Inside the Numbers

OSHA’s press release, issued on October 23,2020, states that the agency issued $ 1,603,544 in penalties to 112 establishments related to COVID-19 from the beginning of the pandemic through October 15, 2020. This translates to an average fine of $14,317 per establishment.

What are cited employers getting wrong? According to the press release, some of the most common reasons for citations include failures to:

• Implement a respiratory protection program;
• Provide a medical evaluation, respirator fit testing, training on the proper use of respirators, and personal protective equipment (PPE);
• Record occupational injuries or illnesses on OSHA recordkeeping forms 300 and 301;
• Report occupational fatalities and occupational injuries illnesses involving hospitalizations, amputations or loss of eye to OSHA as required by the Recordkeeping Standard; and
• Comply with the General Duty Clause of the Occupational Safety and Health Act of 1970.

Now here’s something to think about. OSHA had issued a previous press release on October 16, 2020 citing a total of $1,222,156 in fines to 85 establishments between the start of the pandemic and October 8, 2020. The numbers reported in this latest October 23 release include an additional 27 establishments and $381,388 in fines, and citations issued in just the last three weeks represent approximately 24% of the total amount issued since the beginning of the pandemic. In other words, OSHA has issued nearly one-quarter the number of citations in the last three weeks as it has in the last 7 months. This represents a significant increase in enforcement activities that employers in the U.S. should take very seriously.

If we look at the 27 most recently cited establishments from the most recent press release, we’ll notice that workplaces in the healthcare industry appear most frequently. This indicates that OSHA has recently been focusing its attention on establishments in the healthcare industry, where risks of exposure to the SARS-CoV-2 virus that causes COVID-19 are greatest, but all industries can expect more scrutiny as the pandemic continues.

It’s Not Just Federal OSHA

Of course, not all workplaces in the United States are covered under federal OSHA. There is a total of 22 states and territories that have OSHA-approved state plans covering private sector and local/state government workers. Another six states and territories have plans covering only and state and local workers. Nonetheless, recent trends indicate that many states with approved OSHA plans have been focusing more attention on COVID-19 related safety violations.

As an example, CAL/OSHA has recently issued a number of violations to employers across a variety of industry sectors. The agency cited a major healthcare company for failing to provide workers at one of its facilities with N95 masks to protect against airborne exposure to the SARS-CoV-2 virus. The agency also recently fined a popular grocery store chain for failure to adhere to store capacity limits and maintain physical distancing, as well as failure to regularly disinfect the workplace and train employees on ways to prevent exposure. Additionally, CAL/OSHA recently fined two warehouse establishments operated by a large online retailer for not providing adequate health and safety training related to COVID-19.

We can find similar patterns for other “state plan” states, including Nevada, which recently fined three companies for holding a large public event without prior state approval. Various other states including Oregon, Washington, and Michigan have also issued their own emergency rules requiring that businesses implement measures to protect employees from contracting COVID-19. Under these rules, employers must ensure six-foot physical distancing between all people in the workplace, which may in some cases necessitate redesign of the workplace to include physical distancing “buffer zones.” Employers unable to make such accommodations would need to ensure their employees wear face coverings, while still implementing physical distancing measuring to the greatest extent possible.

As we’ve blogged about previously, a number of states have also issued guidelines (and in some cases mandatory requirements) for employers to conduct health screenings and temperature checks for employees prior to entering the workplace. In some cases, employers may need to use written questionnaires containing specific health questions intended to screen for COVID-19 symptoms and potential exposure to others who have tested positive for COVID-19. If employers have establishments in multiple states, they’ll need to stay on top of requirements within individual states, even as those states continue to modify their rules or establish new ones in response to increasing numbers of cases.

What Can I Do?

The significant increase in COVID-19 related safety responsibilities within such a short period of time has proven to a major challenge for employers. But of course, there were many safety tasks that needed to be managed prior the pandemic. Some of those “normal” EHS tasks may not be receiving the attention they deserve because of the need to prioritize response to the coronavirus. Together, these conditions may create a potential “tsunami” of issues that threaten to overwhelm EHS managers unless they’re well prepared. So, what can we do to keep our heads above water?

Ergonomics & MSD Risks

First, we need to recognize that our response to COVID-19 may have created entirely new risks for our workers. A prime example of this is the risk for musculoskeletal disorders (MSDs) or other ergonomics-related injuries. Workers may be physically deconditioned due extended periods of time working from home or working reduced shifts, and may no longer be able to perform the physical tasks they’d performed before. It’s entirely possible those same tasks may not have been ergonomically well-designed in the first place!

Additionally, if we’ve been forced to modify job tasks due to reduced production or personnel changes, those changes may themselves have introduced new ergonomics issues. Employees working remotely may be at greater risk because of ergonomically poor work-from-home (WFH) setups. Ergonomics responsibilities fall under the General Duty Clause of the OSH Act, and may result in recordable cases if a workplace injury meets one or more of the criteria in OSHA’s Recordkeeping Standard.

Respiratory Protection

Respirators are one of the most important tools for preventing exposure to the SARS-CoV-2, but employers who require workers to wear respiratory protection need to ensure they are complying with the full requirements of OSHA’s Respiratory Protection Standard. Those requirements include development and maintenance of a written Respiratory Protection Plan, respirator fit testing, medical evaluation and training for all workers who use respirators.

It should be noted that OSHA recently updated its fit testing protocols in Appendix A of the Respiratory Protection Standard. A final rule issued in late 2019 updated Appendix A to include two new and shorter testing protocols:

• the modified ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol for full-facepiece and half-mask elastomeric respirators, and;
• the modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators.

Injury & Illness Recordkeeping

According to the October 23 press release, employers are also falling short on their OSHA Recordkeeping requirements. This includes failing to record occupational COVID-19 illnesses, and failure to report serious workplace injuries and illnesses that employers must report to OSHA under the requirements of the Recordkeeping Standard, including hospitalizations. OSHA has stated that COVID-19 cases can be recordable, provided that the case is:

• a confirmed case of COVID-19;
• that the case is work-related, and;
• it meets one or more of the general recording criteria including medical treatment.

OSHA has indicated they will evaluate whether an employer made the correct decision based on the evidence available to them, and the reasonableness of their investigation. This means that employers must maintain a mature incident investigation process and have information about specific injuries and illnesses readily accessible.

For additional information about OSHA’s Recordkeeping Standard, including discussion of common mistakes, please feel free to check out our on-demand webinar: OSHA’s Recordkeeping Standard: Your Guide to Compliance

Strategies for Safety Success

When it comes to protecting your workers and staying in compliance, there’s clearly a lot to do. That’s why it’s a good strategy to develop a COVID-19 preparedness and prevention plan containing protocols for re-opening and moving forward. Some examples of items covered in your plan should include schedules and procedures for disinfecting your establishments, and how you will maintain or adapt those protocols as workers re-enter the workplace. Be sure to address OSHA HazCom requirements for your cleaning products, and maintain IH tasks such as respirator fit testing and chemical sampling plans. You'll also want to have a proactive audit and inspection program to make sure you're performing all of the compliance tasks you need to be doing.

Employers should also consider appointing a COVID-19 point-person or task force to develop and manage your plan, stay abreast of rapidly changing requirements and guidance, and advise company leaders as needed.

Don’t forget, you’ll also need to make sure you’re not falling behind on your “normal” safety tasks as a result of prioritizing COVID-19 preventions. We know from experience, as well as from talking to fellow EHS professionals, that no matter how big or small your company is you probably have a long to-do list and would benefit from ways to not only streamline your processes, but also empower your employees to share the load by performing key safety tasks. VelocityEHS safety management software can give you just the help you need, as well the visibility of safety performance you need to make sure you’re not falling behind on critical tasks.

Let VelocityEHS Help!

VelocityEHS continues to closely follow the ongoing developments from regulators and public health agencies during the COVID-19 pandemic, and we’re committed to connecting you with the information you need to stay safe and healthy during these challenging and uncertain times.

Check out our VelocityEHS COVID-19 Resource Site for a growing library of helpful resources, including free access to tools that can help you simplify compliance, making it possible for you to focus on what matters most.

Also, be sure to check out our Safety Management Solution that can help you manage key safety tasks such as SDS access, incident reporting and investigation, corrective actions, safety meetings and job safety analysis (JSAs). It’s especially valuable for employers in the manufacturing sector, with specific features to help manage common manufacturing safety tasks and drive better decision making.

Please stay safe during these difficult times, and as always, if you want to learn more about our cloud-based EHS software solutions, please feel free to contact us.