October 27, 2020

Volume X, Number 301

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October 27, 2020

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October 26, 2020

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Cal/OSHA Issues First COVID-19 Related Citations

In early September, the California Division of Occupational Safety and Health (“Cal/OSHA”) announced that it cited 11 employers for not protecting employees from COVID-19 exposure. The inspections were conducted in industries where employees have an increased risk of exposure, including food processing, meatpacking, health care, agriculture and retail. The proposed penalties ranged from $2,025 to $51,190.

Generally, the employers were cited for not protecting workers from exposure to COVID-19 because the employers did not appropriately update their workplace safety plans to properly address hazards related to the coronavirus. Cal/OSHA provided some additional details about the conduct leading to some of the citations:

  • Two food processing plants were cited for failing to ensure their workers were physically distanced by at least six feet in the processing area, and they also did not install Plexiglas or other barriers between the workers;
  • A different food processing plant was cited for failing to implement procedures to screen employees and visitors arriving at the facility, and failing to take appropriate measures for employees who exhibited COVID-19 symptoms at the facility;
  • A medical facility was cited for failing to comply with the Aerosol Transmissible Disease standard;
  • Six agricultural employers were cited, but the news release does not provide details on the COVID-19 related citations. Some of these agricultural employers were also cited for failing to protect their workers from heat illness.

Just a week after announcing these 11 violations, Cal/OSHA announced that it had issued citations and significant proposed penalties to another food processing facility and a temporary staffing company, which provided employees to the food processing facility. Cal/OSHA issued $214,080 in proposed penalties to the temporary staffing company and $222,075 in proposed penalties to the food processing facility. Cal/OSHA provided some detail about the conduct giving rise to the citations:

  • The employers did not take any steps to install barriers or implement procedures to have employees work at least six feet away from each other. Specifically, the news alert notes the lack of physical distancing procedures among workers, including where they clock in and out of their shift, where they put on gloves and coats, in the break room, and on the conveyor line;
  • The employers did not investigate any of their employees’ COVID-19 infections, including more than 20 illnesses and one death;
  • Failure to train employees on the hazards presented by the virus;
  • Failure to communicate COVID-19 hazards to employees;
  • The meatpacking plant did not report a COVID-19 fatality to Cal/OSHA.

Cal/OSHA has been very active in investigating employers and responding to employer questions. For example, Cal/OSHA conducted nearly 8,000 compliance assistance visits in July and engaged with more than 400,000 businesses through outreach and education efforts to address questions. While the citations summarized above are the first COVID-19 related citations Cal/OSHA has issued, they will not be the last.

Cal/OSHA has provided extensive COVID-19 related guidance for employers. Employers should review these materials and ensure they are updating their Injury and Illness Prevention Program, training employees about the risks associated with COVID-19, and documenting such training. Employers should also monitor and enforce their COVID-19 procedures.

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 262
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About this Author

Jayni A. Lanham Environmental, Health, & Safety Attorney Beveridge & Diamond Baltimore, MD
Associate

Jayni draws on her experience with environmental, health, and safety (EHS) regimes to help clients assess risk, develop compliance strategies, and build strong legal and technical cases when faced with litigation or enforcement.

Jayni counsels companies in a variety of industries on regulatory compliance and represents them in litigation and enforcement proceedings related to a broad range of federal and state EHS laws. Jayni is a leader of Beveridge & Diamond’s Occupational Safety and Health group and has significant experience advising clients on compliance...

410-230-1333
Kaitlyn D. Shannon Environmental Enforcement & Litigation Attorney Beveridge & Diamond San Francisco, CA
Associate

Kaitlyn Shannon focuses her practice on environmental enforcement and litigation across a range of industries and issues.

She is an experienced environmental litigator and regularly appears in California state and federal courts, and she is the deputy leader of the firm’s Litigation practice group. She has experience with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), including defending against natural resource damages claims. She is also well-versed in California state-law claims, including California’s Superfund program, California’s Environmental Quality Act (CEQA), and common law claims, such as nuisance, and assists clients in navigating the interaction between state and federal laws in these areas. She has argued appeals in both California state court and the Ninth Circuit Court of Appeals.

Kaitlyn also handles administrative appeals for employers under California’s Occupational Safety and Health (Cal/OSHA) program and has guided companies through the use of California writ petitions to challenge agency actions.

Kaitlyn assists diverse industries in making strategic decisions before litigation is initiated to either resolve the conflict through early communications with the regulating agency or, if necessary, take action to preserve legal case theories. In particular, she provides advice to product manufacturers and trade associations under multiple California Extended Producer Responsibility (EPR) regulatory schemes.

Kaitlyn maintains a commitment to pro bono service.  She secured asylum for an El Salvadorian man who came to the United States as an unaccompanied minor fleeing gang violence.

415-262-4020
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