As case numbers of COVID-19 continue to rise across the country, businesses across all industries are facing a challenge of logistics when it comes to maintaining OSHA compliance in the midst of a global pandemic. Many essential businesses and businesses conducting in-person operations this year are facing the possibility that COVID-19 could show up in the workplace, which comes with the potential of receiving a compliant from the Occupational Safety and Health Administration (OSHA).
Unsurprisingly, there has been a significant rise in the number of complaints filed with OSHA this year. In the first two months after the pandemic hit, nearly 4,000 complaints were filed with OSHA across the country. Some of the most common complaints include:
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Concerns that employers have not done enough to protect their employees from COVID-19
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Claims of insufficient personal protective equipment (PPE)
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A lack of COVID-19 response training
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Failure to maintain social distancing in the workplace
If you receive an OSHA complaint, your business must respond in writing within a week, so it’s a good idea to have a response plan in place so that you can be ready in case this happens to your organization. In this blog post, we’ll give you tips for what to do if your business receives an OSHA complaint related to COVID-19.
Applicable OSHA Standards for COVID-19
Although there are no OSHA standards that specifically cover all issues related to COVID-19, the agency has provided a list of standards that are particularly relevant to employers during the pandemic, including the General Duty Clause of the OSH Act.
The General Duty Clause states that employers are required to furnish each employee, “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.”
This clause has been commonly cited in OSHA complaints. It requires employers to understand the health and safety standards for their industry, provide employees with information regarding their rights, and to ensure their employees have access to a reasonably safe workplace.
According to the National Law Review, a violation of the general duty clause is likely to have occurred when:
- The employer failed to keep the workplace free from a recognized hazard that caused—or was likely to cause—death or serious physical harm, and
- A feasible option existed that would have materially reduced the likelihood of the existence of the hazard.
What should I do if my business receives an OSHA complaint?
In April 2020, OSHA issued an Interim Enforcement Response Plan for COVID-19 that provides guidance for how they are handling COVID-19-related complaints, which includes instructions for its officers to conduct electronic reviews whenever possible, and to consider employers’ good faith efforts to comply with OSHA’s standards.
According to the National Law Review article cited above, if an employer receives an OSHA complaint, they should be prepared to provide the following information to potentially avoid an on-site inspection:
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A written pandemic-response plan, as recommended by the CDC
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Procedures in place for hazard assessment and protocols for employees’ use of PPE
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A summary of decontamination procedures
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Recorded and maintained medical records related to worker exposure incidents and other OSHA-required recordkeeping, including whether any employees have contracted COVID-19, have been hospitalized as a result of COVID-19, or have been placed on precautionary removal or isolation
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Where applicable, information regarding the respiratory protection program, and respirator policies related to COVID-19, in compliance with 29 CFR § 1910.134
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Records of training related to COVID-19 exposure and prevention
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Documentation and provisions regarding obtaining and providing appropriate PPE (though OSHA is instructing its field offices to exercise “discretion” when assessing PPE complaints, considering the nationwide shortage during the outbreak)
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Information regarding airborne infection isolation rooms or areas and periodic testing procedures
Understanding and maintaining knowledge on regulations and laws related to the pandemic is laborious and some companies may not know what resources are available or what they should do next. Our PEO team is here to help you navigate the waters through tremulous times like these.
This material is provided for information only. It is not intended as legal or tax advice. You should consult your legal counsel or tax advisor for advice specific to your business situation.
