January 30, 2023

Volume XIII, Number 30


January 30, 2023

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Lessons Learned: OSHA Advises Employers on Most Common Violations in COVID-19 Inspections

The Occupational Safety and Health Administration (OSHA) tweeted last week that it has cited more than 200 employers for coronavirus-related violations, with penalties totaling nearly $3 million. Amidst this wave of enforcement activity, OSHA issued a press release and accompanying guidance and a one-pager on November 6 to advise employers about “lessons learned,” based on the most common violations issued to employers so far during the pandemic.

Below are the requirements that OSHA reports employers have most frequently failed to follow, which deal with respiratory protection, personal protective equipment (PPE), and record-keeping and reporting obligations:

  • Provide a medical evaluation before a worker is fit-tested or uses a respirator

  • Perform an appropriate fit test for workers using tight-fitting respirators

  • Assess the workplace to determine if COVID-19 hazards are present or likely to be present, which will require the use of a respirator and/or other PPE

  • Establish, implement, and update a written respiratory protection program with required worksite-specific procedures

  • Provide an appropriate respirator and/or other PPE to each worker when necessary to protect the health of employees (ensuring the respirator and/or PPE used is the correct type and size)

  • Train workers to safely use respirators and/or other PPE in the workplace, and retrain workers about changes in the workplace that might make previous training obsolete

  • Store respirators and other PPE properly in a way to protect them from damage, contamination, and, where applicable, deformation of the face piece and exhalation valve.

  • For any fatality that occurs within 30 days of a work-related incident, report the fatality to OSHA within eight hours of finding out about it

  • Keep required records of work-related fatalities, injuries, and illnesses

OSHA’s enforcement has primarily focused on hospitals and health care employers, nursing homes and long-term care facilities, meat/poultry processing plants, and other workplaces where COVID-19 presents a particular threat to workers or where mass outbreaks have occurred.   However, OSHA’s enforcement is not limited to these workplaces, and employers in all industries must implement plans to protect employees from workplace exposure to the virus.  

With respect to the respiratory protection and PPE requirements, it is important to keep in mind that OSHA does not consider cloth masks or face coverings to be PPE, although states and localities have mandated that workers wear face masks indoors and where social distancing cannot be maintained.  OSHA’s respiratory protection requirements, including medical evaluations and fit testing for respirators, are required for health care workers who encounter COVID-19 patients as well as other employees at high risk of exposure to COVID-19.  In addition to respirators, other PPE, such as gloves, gowns, face shields, and goggles, may also be necessary to protect workers.

The other most commonly cited violations involve failure to report COVID-19-related fatalities to OSHA within eight hours of finding out about them, as well as keeping records of work-related COVID-19 fatalities, hospitalizations, and illnesses.  We have previously discussed OSHA’s evolving reporting and record-keeping guidance for COVID-19 illnesses, and it is important that all employers investigate positive COVID-19 cases to determine whether illnesses are work-related.

© 2023 Foley & Lardner LLPNational Law Review, Volume X, Number 321

About this Author

Scott Allen, Foley Lardner, litigation employer lawyer, labor attorney

Scott T. Allen is an associate and litigation lawyer with Foley & Lardner LLP. He is a member of the firm’s Labor & Employment Practice.

Prior to joining Foley, Mr. Allen served as a legislative aide for U.S. Senator Herb Kohl, and as a press assistant for U.S. Senator Blanche Lincoln. During law school, he was a summer associate with Foley.

Mr. Allen earned a law degree from Georgetown University Law Center (J.D., dean’s list, 2014). He served as a senior editor of The Tax Lawyer, and participated in...