No company wants an on-site investigation or a citation from the federal government. Before either occurs, the employer will have an opportunity to respond to a complaint. Take preventative action now and know how to respond to a notice.
By Larry Lee
The Occupational Safety and Health Administration (OSHA) is on high alert and aggressively checking in with companies on their workplace compliance standards during the coronavirus/COVID-19 pandemic. How you handle an inquiry can make the difference between having the issue dismissed or triggering an OSHA job site inspection, or worse yet, a citation.
In September alone, OSHA issued 31 updates and pronouncements on its work and the state of workplace safety in general, including everything from reporting work-related cases of coronavirus to handling whistleblowers. On its website, OSHA lists six citations against employers, up from zero citations the month before, clearly indicating that OSHA is back at work responding to complaints and creating heightened risk for unwary employers.
September 16 – OSHA National News Release – U.S. Department of Labor Cites Massachusetts Dental Practice For Failing to Fully Implement Workplace Respiratory Protections
September 11 – OSHA News Release – U.S. Department of Labor Cites Hackensack Meridian Health in North Bergen, New Jersey, For Failing to Protect Employees from Coronavirus
September 11 – OSHA News Release – U.S. Department of Labor Cites New Jersey Hospital For Failing to Protect Workers from the Coronavirus
September 11 – OSHA News Release – U.S. Department of Labor Cites JBS Foods Inc. for Failing To Protect Employees from Exposure to the Coronavirus
September 10 – OSHA News Release – U.S. Department of Labor Cites Smithfield Packaged Meats Corp. For Failing to Protect Employees from Coronavirus
September 10 – OSHA News Release – U.S. Department of Labor Cites Christus Shreveport-Bossier Health System For Failing to Protect Employees from the Coronavirus
Across the Country, OSHA is seriously taking workers’ complaints of alleged failure to protect from coronavirus by employers. With scarce resources, OSHA is prioritizing its enforcement resources on concerning pandemic-related workplace situations, and may not conduct an on-site inspection in response to a complaint if the agency receives a satisfactory response from a notice inquiry.
Recently, I had a client employer which was directed to self-investigate the alleged concerns and make necessary corrections or modifications and report back in writing to OSHA within an immediate period of time after the date of the letter. OSHA specifically requested a report of any “applicable measurements or monitoring results; photographs/video that you believe would be helpful; and, a description of any corrective action you have taken or are in the process of taking, including documentation of the corrected condition.” Documentation on efforts to secure personal protective equipment (PPE) was also requested.
Failure to meet the response deadline could have resulted in an inspection as well as a citation. An OSHA notice of an anonymous compliant from a current or former employee is issued to an employer in a written letter received by mail. The notice may allege workplace hazards at your worksite, such as not maintaining proper social distancing, enforcing the use of masks and other PPE, or observing appropriate hygiene standards.
No company wants an investigation or a citation, including one based on the failure to protect employees from the coronavirus. Before either occurs, the employer will have an opportunity to respond to the complaint. The manner, tone and comprehensive nature of the response is critical to preventing a job site inspection or citation.
Should your company receive a complaint, work with your attorney to draft an appropriate response acknowledging to OSHA that you have received the notice, investigated the concerns, highlighted the situation, and completed prompt and immediate corrective measures as a result of the complaint. Here are general suggestions:
If you receive a phone call, tell the representative you’ll get back to them and call your employment counsel
Understand the nature of current citations and the dangers of slack workplace protocols being called into question
Remove employees from the worksite who have symptoms or have been exposed to an individual who has tested positive for COVID-19
Record a video of the job site in question demonstrating personnel are spread out, maintaining at least six foot spacing, in a ventilated area
and wearing masks and glasses, when applicable
Report the process your company went through once an infected employee was identified to vacate and close off the area to employees entering or working near a “contaminated” space
Demonstrate compliance with company-issued coronavirus Guidelines and Policies laying out protocol for preventing the spread of disease within the workplace and reporting requirements if an employee is experiencing COVID-19 symptoms
Implement procedures for disinfecting areas following the latest CDC guidelines
Execute mandatory wearing of face masks and glasses, as needed, for all job sites
Consider taking any corrective measures as a result of the complaint, such as requiring that employee temperatures be taken prior to entering facilities before every shift
Post the OSHA complaint, if received, in an employee accessible area, photograph and submit to OSHA in your response
The best defense is, of course, a strong offense as early as possible. Maintain documentation of the worksite precautions you have in place at all times as well as updated policies and protocol. And, immediately call counsel with questions or concerns when situations arise. Should you have any questions regarding this or other labor and employment issues, reach out to Larry Lee at firstname.lastname@example.org.