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09.28.2020 | Legal Advisory

The Occupational Health and Safety Administration (“OSHA”) has issued a flurry of citations against employers over the past month related to COVID-19. As businesses reopen and workers return to their workplaces, OSHA’s enforcement activity should serve as a cautionary reminder to employers of their responsibilities under the OSH Act’s “General Duty” Clause and record-keeping requirements as they relate to the threat of COVID-19.

Meat-Packing Plant Citations

On September 10 and 11, OSHA cited two meat-packing plants, Smithfield Packaged Meats Corp. in South Dakota and JBS Foods Inc. in Colorado, respectively, for failing to protect their workers from exposure to the coronavirus. Smithfield was in the news earlier this year, along with other meat processing plants, for high rates of COVID infection among employees. In Smithfield’s case, 1,300 of its 3,700 workers tested positive for the coronavirus, 43 workers were hospitalized, and four workers died. The JBS Foods citation stemmed from a COVID-19 outbreak at the plant resulting in positive tests for 290 workers and six deaths. Both plants were cited by OSHA for “serious” violations of the Act’s “General Duty” Clause, which requires employers to provide workplaces free from recognized hazards that can cause death or serious harm, and fined the maximum amount allowed by law.

OSHA also issued citations to four health care providers in September – two for violating respiratory protection and other standards, and two for failure to protect workers from exposure. Prior to September, OSHA had only issued two citations, in May and July, to nursing home facilities – one for failing to report hospitalizations of workers due to COVID-19, and one for failing to develop a comprehensive written respiratory protection program, among other issues.

OSH Act’s “General Duty” Clause

Under the Act, the “General Duty” Clause requires an employer to furnish to its employees “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Employers can be cited for a violation of the General Duty clause if a recognized, serious hazard exists in their workplace and the employer “does not take reasonable steps to prevent or abate the hazard.” The following elements are necessary to prove a violation of the General Duty Clause:

1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
2. The hazard was recognized;
3. The hazard was causing or was likely to cause death or serious physical harm; and
4. There was a feasible and useful method to correct the hazard.

OSHA’s recent citations to Smithfield and JBS Foods reflect that a failure to implement safety standards, like social distancing and proper hygiene, that are designed to prevent the exposure and spread of COVID-19 – a known hazard likely to cause serious harm or death – in the workplace can constitute a serious violation of the Act under the General Duty Clause.

OSHA has issued detailed guidance regarding preparing workplaces for COVID-19, including steps all employers can take to reduce workers’ risks of exposure to the virus. While there is no specific OSHA standard covering COVID-19 exposure, OSHA has advised that, in addition to the General Duty Clause, the Act’s Personal Protective Equipment and Bloodborne Pathogens standards may apply to employers’ obligations with respect to preventing occupational exposure to COVID-19. If they haven’t already, employers should carefully consult OSHA’s guidance, as well as any state-issued guidance regarding reopening specific workplaces, and ensure that their facilities are in compliance with all recommended safety standards and practices. By establishing clear and well-implemented policies and procedures designed to reduce exposure to the coronavirus, based on state and federal guidance, employers can minimize the potential for OSHA violations.

OSH Act’s Reporting Requirements

In addition to an employer’s obligation to provide a safe workplace for its employees, the Act also requires the employer to maintain a written log of certain workplace-related injuries and illnesses. In a May 19, 2020 Enforcement Memo, OSHA said that a confirmed case of COVID-19 must be recorded in the employer’s OSHA 300 log if:

1. the illness results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness, or if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional (even if it does not meet the other listed criteria), and
2. the employer determines that the COVID-19 illness was contracted at work and is therefore work-related.[1]

In the Enforcement Memo, OSHA assures that “[r]ecording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.”

Recognizing the difficulty that employers face in determining whether a case of COVID-19 was contracted at work, the Enforcement Memo says that OSHA will exercise discretion in assessing the “reasonableness of the employer’s investigation into work-relatedness.” The Enforcement Memo explains:

Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee's COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee's work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.

As further guidance, the Enforcement Memo offers the following examples:

• COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
• An employee's COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
• An employee's COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
• An employee's COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
• An employee's COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
• CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

The Enforcement Memo concludes: “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”

Employer Vigilance

To ensure compliance with the OSH Act’s General Duty Clause with respect to the coronavirus, employers must establish and implement sound safety and health procedures consistent with recommendations from the CDC as well as state and local authorities. Further, an employer must be vigilant to ensure that managers, supervisors, and employees at all levels of the organization understand and follow these procedures. When an employee does report a confirmed case of COVID-19, the employer must conduct a reasonable investigation into whether the illness was contracted at work. If the evidence indicates that the illness is work-related, the employer must record it on the OSHA log and take appropriate steps to prevent further spread in the workplace.

We are continuing to monitor federal and state regulations, and can assist employers in developing best approaches to these workplace issues.

[1] Employers with 10 or fewer employees, as well as employers in designated low-hazard industries, have no recording requirements but must report work-related injuries or illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye.

This advisory was prepared by Natalie Cappellazzo and David Rubin in Nutter’s Labor, Employment and Benefits practice group. For more information, please contact Natalie, David, or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.