Coronavirus Crisis: OSHA Steps Up Enforcement As Businesses Reopen

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

Effective May 26, 2020, OSHA is rescinding the Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), published by the agency on April 13, 2020 (See April 15, 2020 Post), and the Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), published by the agency on April 10, 2020. As businesses reopen, OSHA will instead be guided by two revised enforcement policies.

Inspection Priorities

First, under an Updated Interim Enforcement Plan for Coronavirus Disease 2019 (COVID-19, OSHA will resume in-person inspections of workplaces. The agency will continue to prioritize COVID-19 cases. “Particular attention for on-site inspections will be given to high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces, with high numbers of complaints or known COVID-19 cases.”

OSHA will continue to provide enforcement priority to “[h]igh and very high exposure risk jobs.” In this regard, the Updated Plan says:

“High and very high exposure risk jobs are those with high potential for exposure to known or suspected sources of SARS-CoV-2 that occurs during specific medical, postmortem, or laboratory procedures. Workplaces considered to have job duties with high risk of exposures to COVID-19 include, but are not limited to, hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities, settings where home care or hospice care are provided, settings that handle human remains, biomedical laboratories, including clinical laboratories, and medical transport. The aerosol-generating procedures, in particular, present a very high risk of exposure to workers. The aerosol-generating procedures for which engineering controls, administrative controls, and personal protective equipment (PPE) are necessary include, but are not limited to, bronchoscopy, sputum induction, nebulizer therapy, endotracheal intubation and extubation, open suctioning of airways, cardiopulmonary resuscitation and autopsies.”

 OSHA standards that may be investigated by OSHA as to COVID-19 include:

  •    Recording and Reporting Occupational Injuries and Illness (29 CFR 1904)
  •    General Requirements – Personal Protective Equipment (29 CFR 1910.132)
  •    Eye and Face Protection (29 CFR 1910.133)
  •    Respiratory Protection (29 CFR 1910.134)
  •    Sanitation (29 CFR 1910.141)
  •    Specification for Accident Prevention Signs and Tags (29 CFR 145)
  •    Access to Employee Exposure and Medical Records (29 CFR 1910.145)
  •    General Duty Clause

Recording COVID-19 Cases

Second, under Revised Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19),  COVID-19 is a recordable illness if:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control (CDC);
  2. The case is work-related as defined by 29 C.F.R. 1904.5; and
  3. The case involves one or more of the general recording criteria set forth in 29 C.F.R. 1904.7.

The Revised Guidance acknowledges the difficulty of determining whether a COVID-19 illness is work-related. Still, OSHA maintains that an employer must conduct a reasonable investigation as to whether the disease was contracted at work. In this regard the Revised Guidance states:

“Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.”

Even after a reasonable investigation, it may still not be entirely clear whether COVID-19 was contracted at work.  In this regard, the Revised Guidance provides:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

Reading Between The Lines

OSHA has already been facing intense political pressure to take more decisive action to safeguard workers in the wake of the COVID-19. This pressure will only become more intense as business previously subject to state and local closure orders reopen.  Employers should thus expect OSHA to be considerably more active in the remaining months of 2020.

Most employers already know, moreover, that OSHA obligations do not exist in a vacuum. OSHA inspections and illness recordings are sure to impact exposures other than OSHA citations, such as wrongful death actions, criminal prosecutions and workers’ compensation claims.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Coronavirus Crisis: OSHA Establishes Interim Inspection Priorities

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On April 13, 2020, the Occupational Safety & Health Administration (“OSHA”) published an Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). The Plan identifies “[h]igh and very high exposure risk jobs” which will receive priority by the agency in its enforcement activities during the crisis. The Plan states:

“High and very high exposure risk jobs are those with high potential for exposure to known or suspected sources of SARS-CoV-2 that occurs during specific medical, postmortem, or laboratory procedures. Workplaces considered to have job duties with high risk of exposures to COVID-19 include, but are not limited to, hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities, settings where home care or hospice care are provided, settings that handle human remains, biomedical laboratories, including clinical laboratories, and medical transport. The aerosol-generating procedures, in particular, present a very high risk of exposure to workers. The aerosol-generating procedures for which engineering controls, administrative controls, and personal protective equipment (PPE) are necessary include, but are not limited to, bronchoscopy, sputum induction, nebulizer therapy, endotracheal intubation and extubation, open suctioning of airways, cardiopulmonary resuscitation and autopsies.”

 Several OSHA standards may apply to workplace hazards created by COVID 19:

  •    Recording and Reporting Occupational Injuries and Illness (29 CFR 1904)
  •    General Requirements – Personal Protective Equipment (29 CFR 1910.132)
  •    Eye and Face Protection (29 CFR 1910.133)
  •    Respiratory Protection (29 CFR 1910.134)
  •    Sanitation (29 CFR 1910.141)
  •    Specification for Accident Prevention Signs and Tags (29 CFR 145)
  •    Access to Employee Exposure and Medical Records (29 CFR 1910.145)
  •    General Duty Clause

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Are Employee Homes Subject To OSHA Inspections & Reporting?

By Robert G. Chadwick, Jr. , Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

In the wake of the COVID-19 threat, many employees are working from improvised home work sites. So, what does this mean for OSHA compliance and enforcement?

In 2000, OSHA issued a Directive which purports to answer this question.

Inspections of Home Offices

Under the Directive, OSHA clarified that it would not conduct inspections as to office work activities in a home-based work site. Such activities include filing, scanning, copying, printing, telephone calls, reading, writing and computer work. The Directive states: “OSHA will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees.”

Inspections of Other Home Work Sites

The Directive nevertheless states: “OSHA will .. conduct inspections of other home-based worksites, such as home manufacturing operations, when OSHA receives a complaint or referral that indicates that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, including reports of a work-related fatality.” The directive adds: “Employers are responsible in home work sites for hazards caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee’s home.”

Injury and Illness Reporting

The limitations on OSHA inspections do not affect the reporting of work-related injuries and illnesses. In this regard, the Directive states: “Employers who are required, because of their size or industry classification, by the OSH Act to keep records of work-related injuries and illnesses, will continue to be responsible for keeping such records, regardless of whether the injuries occur in a factory, in a home office, or elsewhere, as long as they are work-related and meet the [applicable] recordability criteria …”

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Company Owner In Contempt After Company Fails To Pay $2.2M OSHA Fine

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On January 3, 2020, the Eleventh Circuit Court of Appeals entered an order holding Great White Construction, Inc., Florida Roofing Experts, Inc. and owner Travis Slaughter in contempt for failing to pay $2,202,049 in OSHA penalties previously affirmed by the Court on October 2, 2017 and June 5, 2018.

The contempt order states the companies and Mr. Slaughter “shall be subject to coercive sanctions, including incarceration, and such other relief as this Court deems just and proper, for any noncompliance after 10 days after the date of this order.”

The January 3, 2020 judgment underscores the authority of federal courts to enforce their orders. Moreover, the judgment shows that companies ignore assessed OSHA penalties at their own peril.

January 3, 2020 Order

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

OSHA’s Top Ten Most Frequently Cited Standards – 2019

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On September 10, 2019, at the National Safety Council 2019 Congress and Expo, Patrick Kapust, Deputy Director of OSHA’s Directorate of Enforcement Programs, provided a preliminary list of OSHA’s top ten most frequently cited standards for fiscal year 2019 (Oct. 1, 2018 – September 30, 2019). Final data will be published on the OSHA website later this year.

The preliminary list:

  1.  Fall protection, construction (29 C.F.R. § 1926.501): 6,010 violations
  2.  Hazard communication standard, general industry (29 C.F.R. § 1910.1200): 3,671 violations
  3.  Scaffolding, general requirements, construction (29 C.F.R. § 1926.451): 2,813 violations
  4.  Control of hazardous energy (lockout/tagout), general industry (29 C.F.R. § 1910.147): 2,606 violations
  5.  Respiratory protection, general industry (29 C.F.R. § 1910.134): 2,450 violations
  6.  Ladders, construction (29 C.F.R. § 1926.1053): 2,345 violations
  7.  Powered industrial trucks, general industry (29 C.F.R. § 1910.178): 2,093 violations
  8.  Fall protection – training requirements (29 C.F.R. § 1926.503): 1,773 violations
  9.  Machinery and machine guarding, general requirements (29 C.F.R. § 1910.212): 1,743 violations
  10.  Eye and face protection (29 C.F.R. § 1910.102): 1,411 violations

Of course, OSHA citations do not always become a final order if challenged in settlement discussions or a notice of contest. Still, the preliminary list is instructive as to the focus of the agency in scheduling and conducting inspections.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Company President In Contempt After Company Fails to Pay $412,000 OSHA Fine

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On July 24, 2019, the Third Circuit Court of Appeals entered a judgment holding a construction company and its president in contempt for failing to pay $412,000 in OSHA penalties previously affirmed by the Court in a November 15, 2012 Decree.  The judgment says the president is personally liable for the portion of the fine not paid by the company.

The company president said he construed the November 12, 2012 Decree, which named him, to apply only in his capacity as an officer or employee of the company, “not to have required [him] individually to satisfy the Decree from personal assets.”

The Third Circuit rejected this position.  The Court said “[i]t is well established that when a corporate officer fails to act on behalf of the corporation to comply with a court order, the officer too may be held in contempt.” The Court also determined the sanction fairly holds the president accountable for “[his] failure, for more than four years, to make even a nominal effort to satisfy the November 15, 2012 Decree.”

The July 25, 2019 judgment underscores the authority of federal courts to enforce their orders. Moreover, the judgment shows that the time to challenge an OSHA fine, especially as to personal liability, is before a federal court renders a decree regarding the fine, not afterwards.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Beware of the Follow-Up OSHA Inspection

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

The OSHA penalty structure is specifically designed to punish employers more severely for uncorrected hazards discovered by the agency during a previous inspection. As of January 23, 2019, the maximum fine for a willful or repeat violation is $132,598; the maximum fine for failing to correct a hazard after the prescribed abatement date is $13,260 per day.

It is not surprising, therefore, that a follow-up OSHA inspection can yield significantly greater proposed penalties than an original inspection. Indeed, the largest citation ever issued by OSHA included $50.6 million in proposed fines against BP Products North America, Inc. for failing to abate hazards from a previous inspection.

To be sure, follow-up inspections have low priority for OSHA according to an agency publication.  A follow-up inspection can nevertheless be triggered by many circumstances, including (1) the nature of the employer’s operations, (2) the nature of hazards discovered during the initial inspection, (3) the failure of the employer to provide timely abatement documentation following the initial inspection, and (4) an event triggering another priority, such as an accident or complaint.

The road from an initial OSHA inspection to resolution of a citation can certainly be a difficult and costly one. For an employer which has heeded the lessons of the initial inspection, a follow-up inspection can be a mere annoyance. For an employer which has not heeded these lessons, however, a follow-up inspection can be devastating.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.