What Employers Need To Know About OSHA COVID-19 Mandates

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

On November 4, 2021, the Occupational Safety & Health Administration (“OSHA”) announced an emergency temporary standard (“ETS”) establishing new minimum COVID-19 vaccination, vaccination verification, face covering and testing mandates for more than 84 million workers. This ETS comes nearly two months after President Biden ordered its promulgation.

[UPDATE: On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an ORDER staying the ETS pending further action by the Court].

WHICH EMPLOYERS ARE COVERED BY THE MANDATES?

The mandates cover all employers with 100 or more employees. In this regard, the determination of whether an employer is covered by the ETS is separate from the determination of whether its employees are subject to the mandates.

The mandates do not, however, apply to:

  1. Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or
  2. Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of Section 1910.502.

WHICH EMPLOYEES OF COVERED EMPLOYERS ARE NOT SUBJECT TO THE MANDATES?

The mandates do not apply to employees of covered employers:  

  1. Who do not report to a workplace where other individuals such as coworkers or customers are present;
  2. While working away from home; or
  3. Who work exclusively outdoors.

WHAT IS REQUIRED OF COVERED EMPLOYERS AS TO EMPLOYEES SUBJECT TO THE MANDATES?

The ETS includes fourteen requirements: 

  1. Employer Policy on Vaccination. The employer must establish, implement, and enforce a written mandatory vaccination policy. An employer is exempted from this requirement only if it establishes, implements, and enforces a written policy allowing an employee, as an alternative to mandatory vaccination, to (a) provide proof of weekly testing for COVID-19, and (b) wear a face covering. The ETS recognizes that a written mandatory vaccination policy need not require vaccinations of employees (a) for whom a vaccine is medically contraindicated; (b) for whom medical necessity requires a delay in vaccination; or (c) who are legally entitled to a reasonable accommodation because they have a disability or a sincerely held religious belief.  
  2. Determination of Vaccination Status. The employer must require each employee to provide acceptable proof of vaccination status, including whether the employee is fully or partially vaccinated. Acceptable proof of vaccination status is (a) the record of immunization from a health care provider or pharmacy; (b) a copy of the COVID-19 Vaccination Record Card; (c) a copy of medical records documenting the vaccination; (d) a copy of immunization records from a public health, state or tribal immunization information system; (e) a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s); or (f), a signed and dated statement by the employee (i) attesting to their vaccination status; (ii) attesting that they have lost and are otherwise unable to provide proof; and (iii) a specific attestation subject to criminal penalties. Any employee who does not have one of the acceptable forms of proof of vaccination status must be treated as not fully vaccinated.
  3. Record of Vaccination Status. The employer must maintain a record of each employee’s vaccination status and must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. 
  4. Support for Employee Vaccination. As to previously unvaccinated employees, the employer must provide (a) a reasonable amount of time to each employee for each of their primary vaccination dose(s); (b) up to four hours paid time, including travel time, at the employee’s regular rate of pay for this purpose; and (c) reasonable and paid sick leave to recover from side effects experience following any primary vaccination dose.
  5. COVID-19 Testing For Unvaccinated Employees. For employees who are not fully vaccinated, the employer must ensure the employees (a) are tested for COVID-19 at least once every 7 days, or if away from work for 7 or more days, prior to returning to the workplace; and (b) provide documentation of the most recent COVID-19 Test result within 7 days or prior to returning to the workplace. A COVID-19 Test must be (a) cleared, approved, or authorized, including in an Emergency Use Authorization (EUA) by the FDA to detect current infection with the COVID-19 virus (e.g. a viral test); (b) administered in accordance with authorized instructions; and (c) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. There is no requirement in the ETS that the employer pay for COVID-19 testing, but such a requirement may be imposed by other laws.
  6. Removal of Employee Without Testing Documentation. If an employee does not provide the necessary COVID-19 testing documentation, the employee must be removed from the workplace.
  7. Records of COVID-19 Tests. The employer must maintain a record of each COVID-19 test result of an employee. These records are considered to be employee medical records, and must be maintained and preserved while the ETS is in effect.
  8. Employee Notification of Positive COVID-19 Test. The employer must require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed health care provider. When an employee has received a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must not require that employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis.
  9. Removal of Employee With Positive COVID-19 Test. The employer must immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep the employee removed until the employee (a) receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing; (b) meets the return to work criteria in CDC’s “Isolation Guidance”; or (c) receives a recommendation to return to work from a licensed healthcare provider. There is no requirement that an employee be paid for time off from work due to COVID-19, but such a requirement may be imposed by other laws.
  10. Face Coverings for Unvaccinated Employees. The employer must ensure that each employee who is not fully vaccinated wears a face covering over the nose and mouth when indoors and when occupying a vehicle with another person for work purposes, except: (a) when an employee is alone in a room with floor to ceiling walls and a closed door; (b) while the employee is eating or drinking at the workplace; (c) for identification purposes in compliance with safety or security requirements; (d) when the employee is wearing a respirator or face mask; or (e) when the employee can show that the use of face coverings is infeasible or creates a greater hazard. There is no requirement that an employer pay for face coverings, but such a requirement may be imposed by other laws.
  11. Required Disclosures to Employees. The employer must inform each employee about (a) the requirements of the ETS as well as any employer policies and procedures established to implement these requirements; (b) the document “Key Things to Know About COVD-19 Vaccines”, published by the CDC; (c) the prohibition from discharging or in any manner discriminating against an employee for reporting a work-related injury or illness; and (d) the prohibitions of the OSH Act providing criminal penalties for those who knowingly supply false statements or documents.
  12. Work-Related COVID-19 Fatalities and Hospitalizations. The employer must report to OSHA (a) each work-related COVID-19 fatality within 8 hours of learning about the fatality; and (b) each work-related COVID-19 hospitalization within 24 hours of the employer learning about the in-patient hospitalization.
  13. Availability of Records to Employee or Employee Representative. The employer must provide, upon request, (a) an employee’s COVID-19 documentation to the employee or anyone having the written authorized consent of the employee by the end of the next business day following the request; (b) the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace to an employee or employee representative by the end of the next business day following the request.
  14. Availability of Records to OSHA. The employer must also provide, upon request by OSHA, (a) the employer’s written COVID-19 policy, and aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace, within 4 business hours of a request; and (b) all other COVID-19 records required by the emergency temporary standard by the end of the next business day following the request.         

WHEN ARE THE MANDATES EFFECTIVE?

Covered employers must comply with all requirements of the ETS except COVID-19 testing by December 5, 2021. In preparation for this deadline, covered employers should immediately begin formulating written mandatory vaccine policies.

Covered employers must comply fully with all provisions of the ETS by January 4, 2022.

DOES THE ETS PREEMPT CONFLICTING STATE AND LOCAL LAWS?

The ETS preempts any conflicting state or local laws as to vaccination, COVID-19 testing or face coverings. The ETS does not, however, preempt state and local laws for employers with less than 100 employees.

IS OSHA’S GENERAL DUTY CLAUSE STILL APPLICABLE TO COVID-19 IN THE WORKPLACE?

OSHA’s general duty clause requires that all employers provide employees a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The ETS was promulgated, in part, because OSHA’s general duty clause was deemed inadequate for combating COVID-19 in the workplace. Still, there may be situations in which the ETS does not apply and the general duty clause will provide the only basis for an OSHA citation.

WHAT PENALTIES DOES A COVERED EMPLOYER RISK BY VIOLATING THE MANDATES?

As of January 15, 2021, the maximum OSHA penalties are $13,653 for Serious, Other-Than-Serious, Posting, and Failure to Abate violations, and $136,532, for Willful and Repeat violations.

HOW WILL OSHA ENFORCE THE MANDATES?

On March 12, 2021, OSHA launched a National Emphasis Program for the inspections of companies that put the largest number of workers at serious risk of contracting COVID-19. Covered employers which are a part of this National Emphasis Program should anticipate inspections as part of enforcement of the ETS. Other employers should expect either inspections or audits of documentation required by the ETS.

There are at least three potential grounds for setting aside the mandates. First, an ETS is not subject to the same procedures as other OSHA standards and thus requires a showing of “grave danger” to employees. This “grave danger” threshold may be more difficult to meet come January 4, 2022.

Second, OSHA is charged with providing employees with a safe workplace, not enforcing pay regulations. The provision of the ETS providing paid time off may not withstand judicial scrutiny.

Third, the efficacy of the ETS will be subject to many questions. Is weekly COVID-19 testing a viable alternative to vaccination? Why does the ETS cover only larger employers, and not smaller employers with less than 100 employees?

Time will tell whether any legal challenges to the mandates ares successful.

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 Vaccination Mandate Faces Uncertain Future

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

On September 9, 2021, President Biden ordered the promulgation by OSHA of an Emergency Temporary Standard (ETS) applicable to employers with 100 or more employees. Under the ETS, covered employers will be tasked with requiring employees to be either fully vaccinated or tested weekly for COVID-19. Covered employers will also be required to provide employees paid time off to (1) obtain vaccines, and (2) recover from the side effects of vaccinations. An employer which violates the ETS will be subject to a penalty up to $14,000 per violation.

Many employers may welcome an OSHA standard as support for (1) existing vaccine mandates, or (2) new vaccine mandates. Still, the ETS announced by President Biden faces an uncertain future for at least three reasons.

First, the ETS has yet to be written by OSHA. The last time President Biden directed OSHA to promulgate an emergency COVID-19 standard, delays plagued the agency’s response. Six months elapsed between President Biden’s January 21, 2021 Order, and the publication of the ETS on June 21, 2021.

Second, once implemented, the ETS will likely be challenged in court. One potential basis for a legal challenge is the need for a ETS. An ETS is not subject to the same procedures as other OSHA standards and thus requires a showing of “grave danger” to employees. This “grave danger” threshold may be difficult to meet for an unvaccinated employee who only interacts with vaccinated employees or who only works from home.

Another potential basis for a legal challenge is the paid time off requirement. OSHA is charged with providing employees with a safe workplace, not enforcing pay regulations.

Still another legal challenge may be the efficacy of the ETS. Any vaccine mandate will likely provide exemptions based upon medical or religious reasons. For such employees, the question will be whether weekly COVID-19 testing is a viable alternative. OSHA will also have to explain why the ETS covers only larger employers, and not smaller employers with less than 100 employees.

Finally, President Biden’s directive leaves several questions to be answered by OSHA in the ETS. How will employers verify vaccination status? Who will pay for vaccinations? Who will pay for COVID-19 testing? How will employers cope with logistical issues related to COVID-19 testing over which they have no control?

For now, employers should continue to heed the advice of legal counsel as to unvaccinated employees in the workplace. The blog will provide updates as the promulgation of the ETS by OSHA progresses.

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 Defers To CDC For Fully Vaccinated Employees

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

On May 17, 2021, OSHA updated its website to add the following message:

“The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

For now, therefore, employers should follow the CDC guidelines as to vaccinated employees.

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 Prioritizes COVID-19 Inspections

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

On March 12, 2021, OSHA launched a National Emphasis Program for the inspections of companies that put the largest number of workers at serious risk of contracting COVID-19. Amongst the employers targeted by the National Emphasis Program are the following:

  • Hospitals
  • Health care providers
  • Nursing homes and assisted living facilities
  • Emergency responders
  • Correctional facilities
  • Meatpacking plants and poultry processing facilities
  • Grocery stores
  • Discount department stores
  • General warehousing & storage
  • Temporary help services
  • Restaurants
  • Workplaces with high numbers of COVID-19-related complaints or known COVID-19 cases
  • Workplaces in communities with increasing rates of COVID-19 transmission

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 Public Shaming Resumes Under Biden

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

As noted in a previous post on this blog, one of the strategies by OSHA under the Obama administration was public shaming of employers which received citations. This strategy included agency press releases scolding employers for not protecting their employees. These press releases were often republished by media outlets thereby reaching a wider audience.

The strategy of public shaming was touted by the agency as an effective deterrent to safety violations. Nevertheless, the strategy proved to be unfair to many employers. Once issued, OSHA citations can be amended, reduced or even dismissed, but the damage to a business’ reputation from a misleading news release can be difficult to undo.

Follow-up posts (here and here) on this bog documented the brief pause, resumption and eventual ban of the public shaming strategy under the Trump administration. In justifying the ban, a Sept. 24, 2020 internal memorandum highlighted an important problem with the strategy: “News releases … can prove misleading if, for example, [OSHA] issues a release at the time a proceeding is first initiated, and is ultimately found to be unjustified in its enforcement action.” The ban thus limited news releases to citations with successful outcomes.

The blog post regarding the Sept. 24, 2020 ban posed the question of what would become of the ban if Joe Biden was elected president? OSHA appears to have already answered this question. In February, the agency resumed the practice (here) of publicizing OSHA citations as soon as they are issued without awaiting a successful outcome.

As emphasized by many posts on this blog, an effective strategy for defending against OSHA enforcement begins before, not after, an OSHA inspection has taken place. The risk of a misleading press release by OSHA is yet another risk of not adopting such a strategy.

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 Issues New COVID-19 Guidance

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

In accordance with President Biden’s January 21, 2021 Executive Order, OSHA published new guidance on January 29, 2021 for mitigating and preventing the spread of COVID-19 in the workplace.

The new guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as to the implementation of a COVID-19 prevention program. 

All of OSHA’s standards that apply to protecting workers from infection remain in place. These standards include: requirements for personal protective equipment (29 CFR 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA’s requirements for employee access to medical and exposure records (29 CFR 1910.1020). These standards have already formed the basis of OSHA citations.

There is no OSHA standard specific to COVID-19; however, employers still are required under the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death.

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.

Biden’s Call To Action To OSHA on COVID-19

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

On January 21, 2021, President Biden signed an Executive Order requiring OSHA to take swift action to reduce the risk that workers may contract COVID-19 in the workplace.

The Executive Order outlines five (f) steps which must be undertaken by OSHA:

(a) issue, within 2 weeks of the date of this order and in conjunction or consultation with the heads of any other appropriate executive departments and agencies (agencies), revised guidance to employers on workplace safety during the COVID-19 pandemic;

(b)  consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021;

(c)  review the enforcement efforts of the [agency] related to COVID-19 and identify any short-, medium-, and long-term changes that could be made to better protect workers and ensure equity in enforcement; 

(d)  launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles; and

(e)  coordinate with the DOL Office of Public Affairs and Office of Public Engagement and all regional OSHA offices to conduct, consistent with applicable law, a multilingual outreach campaign to inform workers and their representatives of their rights under applicable law. This campaign shall include engagement with labor unions, community organizations, and industries, and place a special emphasis on communities hit hardest by the pandemic.

Stay tuned to this blog for further updates.

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.

A Reprieve For Employers From Public Shaming By OSHA

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

As noted in previous posts on this blog (here and here), one of the strategies employed by OSHA has been public shaming of employers who receive citations. This strategy has included agency press releases scolding employers for not protecting their employees. These press releases have often been republished by media outlets thereby reaching a wider audience.

At a 2010 conference, Dr. David Michaels, Assistant Secretary of Labor under the Obama administration, even boasted of the strategy of “regulation by shaming.” He said OSHA would undertake to issue news releases that “name employers, expose their failings, and detail the serious hazards uncovered in our inspections.”

Press releases announcing OSHA citation have continued under the Trump administration, albeit at a reduced pace. In 2020, nearly 100 such press releases have been published on the agency’s website.

New Guidance on Press Releases

On September 24, 2020, an internal Department of Labor Memorandum highlighted an important problem with the public shaming strategy: “News releases … can prove misleading if, for example, [OSHA] issues a release at the time a proceeding is first initiated, and is ultimately found to be unjustified in its enforcement action.”

Accordingly, Assistant Secretary of Labor Patrick Pizzella announced a new policy: “[I]n general, enforcement agencies should not issue news releases before achieving a successful outcome.” “In most cases the appropriate time for a release will be the point in time:

  • After a court or other tribunal has rendered judgment or issued a decision;
  • After a conviction or plea agreement has been obtained;
  • After an agency has entered into a settlement or conciliation agreement with the named party regarding remedies or the payment of a penalty; or
  • After the time for contesting a finding (such as a citation) has elapsed and the party has not contested or requested to negotiate.

Under the new policy, if OSHA wants to issue a press release, the agency must first consult with the DOL Office of the Solicitor. The final decision is at the discretion of the DOL, not OSHA.

COVID-19-Related Press Releases Continue

Perhaps as a result of public criticism of OSHA’s response to the COVID-19 pandemic, the new policy has a limited exception: “An extraordinary circumstance that might warrant a news release at the time a proceeding is initiated would be a case alleging a serious violation that is potentially widespread and which the [DOL] has not addressed in a prominent way previously, so that instructing the public through a news release could significantly further worker protection.”

As late as October 23, 2020, therefore, OSHA was still publishing a list of coronavirus violations.

The 2020 Election

If Trump is reelected President, the new policy will likely last another four years. What will become of the policy, however, if Joe Biden is elected President? Will OSHA return to the previous strategy of public shaming employers even without a successful outcome? Stay tuned to this blog for further updates.

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.

Tracking COVID-19-Related Citations By OSHA

[UPDATE: On Oct. 2, 2020, the OSHA website began listing OSHA-related citations. See the link here].

Many State OSHA agencies have been active this year in citing employers for safety violations related to COVID-19. Federal OSHA, however, has only recently begun to cite employers for such violations. The purpose of this post is to track these federal citations thereby underscoring for employers the new emphasis being placed by the agency on COVID-19.

So far, OSHA’s focus has been directed at meat packing plants and hospitals.

July 21, 2020 – OHNH EMP LLC

OSHA inspected three OHNH EMP facilities in Ohio: Pebble Creek Healthcare Center in Akron, and Salem West Healthcare Center and Salem North Healthcare Center in Salem. OSHA announced on July 21, 2020 it had cited each location for an alleged serious violation of two respiratory protection standards: allegedly failing to develop a comprehensive written respiratory protection program and allegedly failing to provide medical evaluations to determine employees’ ability to use a respirator in the workplace. OSHA proposed a penalty of $40,482.

Sept. 8, 2020 – Nautchaug Hospital

On Sept. 8, OSHA issued a citation against Nautchaug Hospital in Connecticut, which alleges: On or about, April 25, 2020, employees who provided direct care to a suspect COVID-19 patient were not provided adequate respiratory protection and were potentially exposed to SARS-CoV-2 virus.” The citation proposes a penalty of $11,566. 

Sept. 10, 2020 – Smithfield Packaged Meats Corp.

At least 1,294 workers employed at Smithfield Packaged Meats Corp., in Sioux Falls, South Dakota, contracted coronavirus, and four employees died from the virus in the spring of 2020.On Sept. 10, 2020 OSHA announced it had cited Smithfield for alleged violations of the general duty clause of the OSH Act. OSHA proposed a penalty of $13,494. Smithfield has announced its intention to contest the citation.

Sept. 10, 2020 – Christus Shreveport-Bossier Health System

Earlier this year, employees of the Christus Shreveport Health System complained to OSHA of exposures to COVID-19 due to improper protection protocols. On Sept. 10, 2020, OSHA announced it had cited Christus for alleged personal protective equipment violations. OSHA proposed a penalty of $13,494. Christus has announced its intention to contest the citation.

Sept. 11, 2020 – JBS Foods

Onn Sept. 11, 2010, OSHA demonstrated that meat packing companies are a national emphasis for inspections and citations. OSHA announced it had cited JB Foods for alleged violations of the general duty clause of the OSH Act. OSHA proposed a penalty of $15,615.

Sept. 11, 2020 – CarePlus Bergen Inc. d/b/a Bergen New Bridge Medical Center 

On Sept. 11, 2020, OSHA announced it had cited CarePlus Bergen, Inc. d/b/a Bergen New Bridge Medical Center in New Jersey for allegedly violating respiratory protection standards. The citation was prompted by a coronavirus-related inspection. OSHA proposed a penalty of $9,639.

Sept. 11, 2020 – Hackensack Meridian Health Residential Care Inc. 

Based on a coronavirus-related inspection, OSHA announced on Sept, 11, 2020 it had cited Hackensack Meridian Health Residential Care, Inc. for an alleged serious violation for failure to provide respirators to resident-care employees for a period of time in March 2020. Employees were caring for residents who were exhibiting symptoms of coronavirus. OSHA also cited the employer for the alleged failure to conduct respirator fit testing, effective training and compliant medical evaluations, during the period after the employer began providing respirators to the employees and requiring their use. OSHA cited one other-than-serious violation for the facility’s alleged failure to establish a fit-test record for qualitative fit tests. OSHA proposed a penalty of $28,070.

Sept. 11, 2020 – Roudebush VA Medical Center

OSHA cited Roudebush VA Medial Center in Indiana for failing to provide appropriate PPE and failing to protect employees from COVID-19, particularly non-medical staff.

Sept. 16, 2020 – Georgetown Dental LLC 

On Sept. 16, 2020, OSHA announced it had cited Georgetown Dental, PLLC for allegedly failing to provide medical evaluations and fit testing for employees required to wear N-95 respirators as protection against coronavirus; lack of written programs related to respiratory protection, bloodborne pathogen exposure control and chemical hazard communication; insufficient bloodborne pathogen training and controls; and inadequate eyewash stations. OSHA proposed penalties of $9,500. The company has paid the penalty in full and abated the citations.

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.