As we reported earlier, federal OSHA is pursuing a nationwide National Emphasis Program (NEP) for Covid 19, targeting what it deems to be higher hazard industries for flood-the-zone enforcement action by hundreds of inspectors (AA, 4-1-21, P. 5).
Since March, the agency has surged through the hospital and healthcare industry before recently announcing a new focus on restaurants.
Keep in mind that among other targeted industries sure to see future visits from OSHA inspectors are general warehousing and storage, and temporary staffing agencies, as well as big retailers and meat processors.
If your business is on OSHA’s hit list, you need to review and update your Covid 19 safety documents, programs and procedures. Be especially careful to mind state and local mandates that contradict the newest national mask guidelines issued by the Centers for Disease Control & Prevention (CDC).
Also, take the time to review OSHA’s most recent guidance for employers, Mitigating and Preventing the Spread of Covid 19 in the Workplace, until – and if – the agency finally issues Emergency Temporary Standards. (AA, 4-15-21, P. 1).
OSHA reports 408 workplaces have received about 1,150 citations for Covid 19-related violations between July 1, 2020, and April 12, 2021.
Although this involved a wide range of citations, most of those issued since the NEP began have been for respiratory protection violations (with N95 respirator use topping the list) along with recordkeeping violations.
But employers are fighting back. “Typically, only 8% of cited employers contest citations. Not so for Covid 19,” report attorneys for the Jackson Lewis law firm. Employers cited by OSHA for alleged Covid 19 violations have contested the citations at more than quintuple the ordinary contest rate, to a whopping total of 42%.
One reason for this is that during the pandemic OSHA has seen an unusually large number of employee complaints, the attorneys note.
“Because these cases arose from a novel situation, OSHA applied pre-pandemic standards in novel ways, leading to disputes between the agency and employers over appropriate use and interpretations of standards relating to respiratory protection, sanitation, PPE and recordkeeping,” they point out.
Some employers chose to contest charges of failure to report “work-related” instances of Covid 19 exposure because it is impossible for OSHA to prove whether exposures to the disease took place in the workplace or in the community.
“When OSHA receives employee complaints of Covid 19 exposures and cites an employer, it effectively places the onus on the employer to prove the employee caught the virus from a family member, in a grocery store, or from dining with friends in a restaurant – an impossible task,” the Jackson Lewis attorneys state.
Another issue is the shifting guidance from the Centers for Disease Control and Prevention (CDC), OSHA, and state and local health departments.
The attorneys also note that the traditional approach taken by an employer seeking to resolve a citation is to enter into an informal conference with OSHA employees and then agree to accept the citation in exchange for a penalty reduction.
After the employer has made the reduced payment and provided the required documentation of hazard abatement to OSHA, it hopes to quickly close the matter and move on.
“This short-term solution may provide false hope, especially if the employer waives potential defenses such as employee misconduct, technological infeasibility or greater hazard,” say the Jackson Lewis attorneys.
They argue that acquiescing to a citation ignores the hidden costs created when an employer accepts a quick settlement offer made during an informal conference, even if it immediately results in monetary or classification reductions (e.g., being changed from “Serious” to “Other Than Serious”).
These hidden costs can include exposure to later repeated violations that incur increased monetary penalties, lost business opportunities and creation of a public record of the violation on display for competitors, news sources and labor organizations to see that can irreparably damage reputations.
“During the Covid 19 pandemic, employers have made greater use of the ability to contest citations, for good reasons,” the attorneys stress.
When the Pen Is the Sward
If they don’t choose to fight the citation, employers should consider negotiating with OSHA over the language used in its press release announcing your violation to the world at large. Biden’s appointees announced their intention to follow the Obama-era agency practice of using these releases as a tactic for “public shaming” employers charged with violations of safety and other federal regulations.
These releases then can be used by unions in organizing campaigns, as well as result in poisoning the jury pool if further litigation ensues.
“OSHA press releases are often picked up and mentioned in local or national news outlets, magnifying the negative publicity in the region,” say attorneys Mark A. Lies, II and Adam R. Young of the Seyfarth Shaw law firm.
Employers can face adverse professional rankings from third-party safety tracking services and even receive bans from certain customers for bidding on contracts or projects. Even worse, based merely on allegations, OSHA can place the employer into its Severe Violators Enforcement Program.
Lies and Young suggest employers adhere to the following communications strategy in creating talking points and your own press releases:
- Acknowledge that a serious incident or a major inspection occurred.
- Offer respectful condolences and concern for the health of any injured employees or other individuals harmed.
- State that the company’s investigation into the accident is ongoing.
- State that the company has and will continue to work cooperatively with OSHA and any other applicable government agency during their inspections of the worksite.
- Do not criticize OSHA or its personnel.
- Respectfully state the company disagrees with OSHA’s issuance of citations, and that the company will continue to discuss a resolution of the citations. If necessary, also indicate that the company is contesting the citation.
- Do not speculate as to the cause of the accident, admit fault, offer an apology or suggest that the company violated OSHA rules or its own policies.
- Do not blame any employee for the occurrence of the accident.
- Do not suggest that any employee involved in the incident is suspected to have been asleep or impaired by drugs or alcohol.
- Maintain employee privacy; do not disclose the names of any individuals involved in the incident.
- Note the company’s longstanding commitment to keeping all employees safe and healthy in the workplace.