Don’t Use COVID-19 as Excuse for OSHA Non-Compliance: Legal Experts

When it comes to recordkeeping, the hardest questions employers are grappling with are whether an incident is recordable or not, and whether it is work-related.

Employers who try to use the pandemic as an excuse for non-compliance with OSHA regulations can expect no mercy from the agency and will still face hefty fines and penalties, according to legal experts.

During a recent webinar hosted by the American Society of Safety Professionals (ASSP), Todd Logsdon, partner at Fisher & Phillips LLP, and Barry Spurlock, practicing attorney and associate professor at Eastern Kentucky University, offered these and other insights into common questions they have received around how OSHA regulations may or may not have changed in the new COVID landscape. Here is a summary of their observations on a number of top-of-mind topics.

Training During COVID

Many organizations are wondering how to proceed with required training while operating under the onerous restrictions the pandemic has brought about. When training is designed simply to impart knowledge to workers, on topics like how to obtain a safety data sheet or how an injury should be reported, Spurlock noted that OSHA’s stance seems to be that employers can do that virtually, as opposed to a gathering in a traditional classroom setting. However, if the training requires the worker to demonstrate or obtain a skill, such as forklift training or confined space rescue training, OSHA will be looking for proof of effort.

“The employer is going to need to show good faith,” said Spurlock. “They can’t just say, ‘Well COVID kept us from being able to do this.’ They need to have some demonstrable proof that they’re exercising a good-faith effort.”

Examples of good faith, he added, could include showing OSHA that they have scheduled third-party consultants to come in to conduct the required training by a certain date, or that materials required for the training have be ordered for as quick a delivery as possible.

PPE Requirements

Employers in construction and general industry should not expect to see any relaxation of PPE requirements from OSHA, despite the impacts COVID may have had on their ability to provide it.

“You have to make every effort you can to meet those requirements, and if you’re not able to do that, you have to find some other way to protect the employees from the hazard,” said Logsdon. “If you can remove the hazard or eliminate it through engineering practices, that’s fine. But if you’re not doing that work, if you are knowingly exposing employees to that hazard, I think you’re potentially setting yourself up for a willful violation. Your time would be better spent trying to do everything you can to eliminate that hazard through other means.”

Recordkeeping Requirements

Spurlock noted a widespread belief within much of the health and safety community that COVID-19 represents a novel issue in the record-keeping standard. However, he said, there’s nothing really new about it.

“COVID-19 is a communicable illness that could happen in the work environment just like anything else,” he said.

Given that reality, the hardest questions employers are grappling with are whether an incident is recordable or not, and whether it is work-related. Spurlock laid out a scenario in which a worker who tests positive for COVID and who works beside another employee who also tests positive but has no other exposures other than the one they have at work. Chances are that transmission occurred at work, therefore making the second worker’s case a work-related illness. It is these types of tracing exercises that employers have to undertake to determine if a case is work-related.

Logsdon added that it is harder for employers that have employees working in close contact with each other who test positive to say a COVID-19 case was not work-related, “especially in situations where maybe they’re sharing a car, maybe going from worksite to worksite.”

Air Quality Requirements

Spurlock pointed to guidance issued by OSHA on January 29 as a compass to understand what the agency will want to see from an employer on the air quality front, including: making sure that ventilation is increased whenever possible; increasing outdoor air and getting fresh air indoors; increasing fan usage; disabling demand control ventilation; reducing recirculation; checking filters and changing them if necessary; and making sure restroom exhaust fans are within service life. Logsdon added that the OSHA guidance should serve as “a good roadmap to what we’re going to see in an (upcoming) emergency temporary standard” from the agency.

Inspections Under COVID

Since about last April, most COVID-related workplace incidents that have led to a hospitalization have tended to result in a remote type of inspection from OSHA. This involves conducting opening conferences by telephone, as well as any interviews, and requests to receive documents by email. “They may never actually come on site,” said Logsdon.

Incidents that do seem to be resulting in on-site visits from OSHA are fatalities involving machines. Organizations that receive an in-person visit should expect to hear questions about what their COVID protocols are and whether they have had many COVID-positive employees in their workplace.

COVID’s Effect on the Profession

Spurlock noted an important lasting effect we can expect to see on the OSH profession itself as a result of the pandemic. “Employers will be looking for the OSH professionals that work for them to be much more versed in pandemic infectious disease control than what has usually been required,” he said. They will need to have some knowledge and have the skill to deal with this and to effectively implement a plan. “The issue of pandemics has been in the OSH profession scope of practice for years, but I don’t think it was listed as one of the fundamental tools, or at least we didn’t perceive it that way. I think going forward, it certainly will be.”

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