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COVID-19: Whatever Happened to OSHA?

From the early days of the pandemic, we’ve covered the importance of having an Infectious Disease Preparedness and Response Plan based on existing OSHA Guidance. That Plan – based on CDC guidance, incorporating state-specific measures, and updated to reflect changes in either or both – remains your best protection in the event of employee complaints to OSHA about the safety of your workplace. 

However, the concept of a Preparedness and Response Plan has been around for years, and while OSHA Publication 3990-03 does tie its plan guidance directly to COVID-19, many people – employers and employees alike – wonder why OSHA does not seem to be playing a more prominent role with regard to pandemic-related workplace safety.

Has OSHA Done Enough?

The question is understandable. OSHA has been criticized extensively for not investigating enough workplaces, not filing enough citations for safety and health violations, and not punishing employers harshly enough. The greatest criticism of OSHA stems from its decision not to promulgate any emergency standards related to COVID-19, and to rely on guidance instead. OSHA’s position is that rules take far too long to issue, and even temporary, emergency rules are too rigid at a time when flexibility is essential in light of the virus’s rapid evolution, our evolving knowledge, and our country’s reaction to it. 

OSHA notes that it has issued significant guidance for employers, including a growing list of specific industries. Various groups have sought to challenge OSHA’s approach in court with results that generally favor deferring to OSHA’s discretion regarding how best to protect worker safety and health. 

OSHA is the Only Sheriff in Town

Because OSHA has exclusive regulatory authority over workplace safety in the U.S., states are not allowed to regulate workplace safety unless they have OSHA’s approval. Twenty-two states have full-blown OSHA-approved plans, and six have plans limited to state and local government workers. In the states where Pierce Atwood has offices (ME, NH, MA, RI, and DC), only Maine has an OSHA-approved state plan, and it’s one of the six that is limited to public sector workplaces. Therefore, to the extent that political pressure may be mounting for state action in the face of a perceived lack of action at the federal level, there is little that states can do without pre-existing OSHA-approved workplace safety and health programs.

OSHA Clarifies Reporting Confusion

The OSHA guidance on an employer’s duty to report COVID-19 cases has evolved during the pandemic.  Generally speaking, employers must report certain occupational injuries and illnesses, such as fatalities and in-patient hospitalizations. The applicable federal regulation requires that employers report a work-related fatality within eight hours if the fatality occurs within 30 days of the event precipitating it. For illnesses, employers have 24 hours to report an in-patient hospitalization, provided the hospitalization occurred within 24 hours of the work-related event (e.g.,exposure) that led to the need for hospitalization. 

While many infectious diseases are not reportable, OSHA has consistently maintained that COVID-19 cases must be reported in certain situations. However, which situations require reporting has been a moving target since spring. 

Initially, only employers whose employees’ job duties exposed them to COVID-19, such as health care workers, were required to report work-related COVID-19 hospitalizations or deaths. In May, that changed to all employers. In July, OSHA further expanded the reporting obligation to include all COVID-19 hospitalizations or deaths, work-related or not, and irrespective of the time between exposure and the reportable event. 

Then, on October 1, 2020, OSHA updated its FAQs yet again, this time in a more reasonable way. Employers must now report cases that involve hospitalizations within 24 hours of a workplace exposure to COVID-19. If an employer learns of the link between hospitalization and exposure after the fact, it has 24 hours to report from when it has that information. For fatalities, the requirement is to report within eight hours any fatality that occurs within 30 days of a workplace exposure.

Stick to the OSHA Basics

The frequency of COVID-19 deaths and hospitalizations is decreasing, and we certainly hope you have no such cases to report to OSHA. If you have had such cases in the past, but have failed to report them in the time required by OSHA, you still have a duty to report, although you will essentially be admitting to a violation when you do. OSHA has been generally quite forgiving of employers trying in good faith to operate safely and in compliance during the pandemic. That said, employers that find themselves in this situation may want to contact us to discuss the best way to come into compliance.

There are certainly two sides to the argument as to whether OSHA has done enough to promote COVID-19-related workplace safety and health. However, for better or worse, OSHA remains the single regulatory body in our region with authority for workplace safety. Employers that have created, kept up-to-date, and enforced Preparedness and Response Plans, and that have reported according to the October guidance described above, will continue to be in the best position to respond to any complaints or citations from OSHA, and to keep their employees as safe as possible until the pandemic winds die down for good.

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 287
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About this Author

James Erwin Employment Lawyer Pierce Atwood Law Firm
Partner

Jim Erwin leads Pierce Atwood's Employment Group. He has extensive state and federal litigation experience in a wide range of substantive areas at the trial, appellate, administrative and arbitration levels. His practice involves the defense at agencies and in court of all types of employment claims, including sex, race, religious and national origin discrimination; sexual and racial harassment; disability discrimination under the ADA; FMLA; retaliation and whistleblower claims; restrictive covenant and trade secrets enforcement; wage-hour claims and class actions; defamation; and labor...

(207) 791-1237
Charlie Einsiedler Labor & Employment Attorney Pierce Atwood Law Firm Portland Maine
Partner

Charlie Einsiedler is an experienced practitioner in all aspects of labor and employment law. He has an active practice advising employers on a wide range of benefits compliance issues such as COBRA, HIPAA, USERRA and the FMLA.

Charlie regularly counsels employers, providing preventive advice and practical solutions to the day-to-day problems confronting businesses large and small. He has a significant, traditional labor practice dealing with unions and has represented employers in strikes, union election campaigns, contract negotiations, railway labor, and employment litigation. He has also led successful court challenges to statutes and regulations intended to restrict employer flexibility.

Charlie has represented public and private employers in Maine and New Hampshire from diverse industries, including pulp and paper, textiles, health care, utilities, transportation, construction, and retail in union-organizing campaigns, arbitrations and unfair labor practice claims. He frequently advises unionized employers concerning contract interpretation, benefits and negotiation issues, and represents employers in both grievance and interest arbitrations. Charlie has been actively involved in strike preparation, planning and implementation and litigation arising out of the region's largest strikes. He has obtained numerous temporary restraining orders against unlawful union picketing conduct during strikes.

Charlie frequently appears before the region's Human Rights Commissions and the EEOC on discrimination matters and is often involved in alternative dispute resolution (ADR), including mediation and arbitration of employment disputes in an effort to avoid litigation.

Charlie has led the successful challenge to several legislative and administrative attempts to restrict employers. For example, he was lead counsel for the Maine Chamber of Commerce and Industry in its Amicus Brief to the Justices of Maine's Supreme Judicial Court resulting in a unanimous opinion that proposed legislation to restrict an employer's right to hire replacements during a work stoppage was unconstitutional. He successfully obtained a preliminary injunction in U.S. District Court against a Municipal Ordinance designed to obstruct an employer's ability to operate during a strike. He obtained a judgment in the U.S. District Court for the District of Maine holding that the so-called Railroad Employees Equity Act-which imposed significant burdens upon new rail carriers was unconstitutional. He also filed suit against regulations concerning Maine's wood measurement laws. As a result of that lawsuit, the Attorney General's office withdrew the regulations and promulgated new regulations.

(207) 791-1388
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