When you think of mitigating workplace accidents, dangers such as machinery or hazardous chemicals may come to mind as common workplace hazards, but what about invisible dangers like viruses?
The Occupational Safety and Health Administration’s (OSHA) oversight of infectious diseases in the workplace started with issues reported in healthcare settings. Healthcare workers are particularly at risk for being exposed to illnesses at work, given that many people they encounter at work may be asymptomatic or showing only mild symptoms. After reviewing previous outbreaks of norovirus, mumps, and pertussis, as well as the SARS and Ebola epidemics, and the H1N1 pandemics of 1918 and 2009, OSHA believed that mandatory requirements and oversight could reduce the risk of infectious diseases in the healthcare-related workplace.
When the COVID-19 pandemic hit the United States in 2020, OSHA required that employers investigate whether employees who contracted COVID-19 were infected while performing work-related tasks. This requirement came at the start of the pandemic, when contact tracing helped identify when and where an individual may have been infected. As the pandemic continued, community spread of the virus expanded so quickly it became difficult to trace precisely where new cases originated. OSHA, however, has not changed its requirement, and employers must continue to investigate whether an employee contracted COVID-19 at the workplace. If an employer determines that COVID-19 was contracted at work, it must follow OSHA rules to record the illness while protecting the rights of the infected employee.
At the start of COVID-19, OSHA categorized workplaces according to risk for exposing and spreading the virus, with hospitals and long-term care facilities being among high-risk workplaces. OSHA then prioritized inspections and complaint investigations to focus on those specific workplaces.
OSHA fines for pandemic-related violations totaled over $3 million in 2020. Violations have included failing to have a written protection plan in place to limit exposure and failing to provide personal protective equipment. OSHA has also cited companies for failing to properly record COVID-19 illness. Bearing in mind that OSHA has six months to complete an investigation into workplace safety complaints, total fines related to 2020 violations may increase substantially and not be totaled until well into 2021.
According to OSHA, some have questioned whether the fines were severe enough to address the violation and curb further infractions. For instance, at a South Dakota meat-packing plant,1,300 employees contracted the virus and four died from COVID-19. OSHA cited the employer for “failing to provide a workplace free from recognized hazards that cause death or serious harm,” but the penalty equated to only approximately $10 per worker affected.
OSHA was further criticized for its handling of whistleblower complaints received for COVID-19 violations. As of October 2020, only 2% of employee complaints were resolved. 54% of whistleblower complaints for COVID-19 violations were dismissed or closed without investigation. While OSHA has been historically slow to resolve whistleblower complaints in the past due to statutory barriers and funding issues, the COVID-19 pandemic has brought more public attention to the detrimental effects of such delays as workers continue to be exposed to potentially unsafe working conditions.
OSHA COVID-19 VIOLATIONS AND PENALTIES
Outbreaks and pandemics provide important insight for expectations for workplace safety. The items that are scrutinized during an OSHA investigation include the written policies and training provided to employees. Employers need to continually evaluate their risk for exposing and spreading illness at the workplace, update and tailor policies in a way that addresses current practices, and ensure training is provided to employees.
Given that employers should already have policies and procedures for workplace safety, tailoring a plan to address COVID-19 (or other pandemics) should not require completely new processes. Updated policies may include a pandemic safety plan. A COVID-19 safety plan can contain multiple protocols to mitigate the exposure to the virus: promoting proper hygiene practices, enforcing mask-wearing and social distancing, conducting workplace health screenings, rotating shifts to minimize gatherings, and frequently cleaning the work area effectively. Taking a multiple barrier approach to minimizing exposure to COVID-19 not only helps satisfy OSHA expectations but also helps employees feel safer in the workplace. The safety plan could also designate people within an organization to monitor workers’ health and enforce the new protocols, when needed. Depending on services provided, the safety plan may apply to more than just employees—employers may need to provide training on their safety plans to contractors, suppliers, customers, or others who visit the workplace.
Workplace safety policies and procedures are continually updated as new rules, regulations, and best practices are implemented. A pandemic safety plan is no different. It is only by making concerted efforts and continually monitoring OSHA guidance that employers can ensure they are taking the appropriate steps to keep employees healthy and safe.