Higher OSHA penalties raise the stakes for worker health

Employer efforts to protect workers from Covid-19 are a focus of the Biden Administration. On January 21, the President issued an Executive Order on Protecting Worker Health and Safety, which, among other things, requires the Labor Department to:

• “review [OSHA] enforcement efforts […] related to COVID-19 and identify any short-, medium-, and long-term changes that could be made to better protect workers and ensure equity in enforcement”; and

• “focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles.”

Compliance

To prepare for the heightened enforcement efforts, employers should periodically review OSHA’s Covid-19 webpage.

For contractors, OSHA offers construction-specific guidance intended to help protect their workforce, including:

• using personal protective equipment (PPE) “necessary to protect workers from other job hazards associated with construction activities” [1];

• training workers on how to put on, use and remove protective clothing and equipment;

• cleaning shared tools with EPA-approved chemicals; and

• cleaning and disinfecting portable jobsite toilets and providing hand-sanitizer dispensers.

Other construction-specific OSHA guidance (see “Construction Work”) includes task-specific precautions, engineering controls, administrative controls, and useful details concerning safe work practices and PPE. The administrative controls include sample screening questions that employers should ask before sending employees to work indoors if the area may also be occupied by other people.

[1]Although the CDC recommends using cloth face coverings as a protective measure against COVID, it is not an appropriate substitute for PPE.

Violations

OSHA standards can result in fines on contractors for Covid-19-related violations. Some pertinent standards govern:

• access to employee exposure and medical records;

• sanitation;

• personal protective equipment;

• eye and face protection; and

• respiratory protection.

In addition, Covid-19 could be a recordable illness that must be included on a contractor’s OSHA 300 log, if:

• there is a confirmed case of Covid-19;

• the case is “work-related”; and

• the case involves at least one or more general reporting criteria, such as days away from work or medical treatment beyond first aid.

Failure to adequately ensure workplace safety could result in an investigation by OSHA and significant fines.

OSHA Penalty Increases

On January 8, OSHA announced its intention to increase its maximum penalties for 2021:

Type of Violation / Penalty per Violation

• Serious / Other-Than-Serious / Posting Requirements: $13,653

• Failure to Abate: $13,653 per day beyond the abatement date

• Willful or Repeated: $136,532 per violation

With these increasing penalties, it becomes that much more important to achieve OSHA compliance by reviewing your internal policies and procedures regarding worker health and safety.

For help with an OSHA compliance issue, contact your Lang Thal King & Hanson attorney.