Because of “COVID fatigue,” and the increasing number of vaccinated individuals in the workforce, many employers are becoming lax in their COVID-19 prevention efforts, such as social distancing and requiring facial masks. To avoid potential OSHA and Cal/OSHA citations and fines, however, they should continue to comply with all applicable COVID-19 guidance, regulations, and orders.
OSHA’s New COVID-19 “National Emphasis Program”
On March 12, 2021, OSHA launched its COVID-19 “national emphasis program” (“NEP”), which focuses enforcement efforts on “companies that put the largest number of workers at serious risk of contracting the coronavirus,” and employers that retaliate against employees for complaining about unsafe or unhealthy conditions. The NEP provides lists of “primary target industries,” such as healthcare, grocery, retail, and restaurants, and “secondary target industries,” generally manufacturing and warehousing operations. Under the NEP, at least 5% of OSHA inspections in each region should be COVID-19 related. Inspections are scheduled according to NEP’s established priorities, with COVID-19 fatalities first, followed by employee exposure to COVID-19 related hazards. Employers of all sizes are subject to the NEP – OSHA’s standard recordkeeping exemption for employers with 10 or less employees does not apply. Inspections began on March 26, 2021.
In addition to inspections, the NEP is focused on “employers that engage in retaliation against employees who complain about unsafe or unhealthful conditions.” Workers who complain about COVID-19 exposures, request inspections, or report injuries or retaliation may be protected by one or more whistleblower protection statutes. The appropriate OSHA area office will direct any worker who reports retaliation to the Regional Whistleblower Protection Program, without conducting an independent investigation. As a result, employers may face additional retaliation investigations based on nothing more than one employee’s say-so.
OSHA strongly encourages “state plans,” such as Cal/OSHA, to adopt the NEP, but does not require it. All state plans must notify OSHA by May 12, 2021, whether it has a substantially similar policy in place, intends to adopt new policies and procedures, or does not intend to adopt the NEP. If applicable, state plans also must identify any differences between their plan and OSHA’s. OSHA will then determine whether the state plan’s policy is sufficient. OSHA will provide summary information regarding state plan responses on its website at www.osha.gov/stateplans/adoption.
Cal/OSHA’s Enforcement Efforts
In November 2020, Cal/OSHA issued its Emergency Temporary Standard (ETS), which requires employers to undertake certain COVID-19 mitigation and prevention efforts. Among other things, employers with any employees working onsite must conduct worksite inspections, implement and distribute a written COVID-19 Prevention Plan, and provide COVID-19 training to employees. Even if Cal/OSHA chooses not to adopt the NEP or a similarly targeted program, the California agency actively is responding to complaints and incidents related to COVID-19, and issuing citations for ETS violations. Cal/OSHA posts weekly on its website a list of every establishment that receives citations.
Preparing for OSHA and Cal/OSHA Inspections
With increased agency enforcement efforts on the federal and state levels, employers need to be prepared. First, employers should review their COVID-19 exposure mitigation policies and procedures, and ensure they are compliant. For example, all California employers must create and implement a COVID-19 Prevention Plan that complies with Cal/OSHA’s ETS, the California Department of Public Health’s (“CDPH”) orders and Industry Guidance, California’s COVID-19 Employer Playbook, and ordinances and directives issued by local health departments. Employers should review relevant policies and procedures frequently, and implement prevention practices consistent with the risks in their particular workplaces.
Training also is a critical component of COVID-19 prevention. All employees must receive provided with training that is tailored to their duties and specific locations. Cal/OSHA’s ETS and the CDPH’s Industry Guidance impose certain training requirements depending on the situation.
Employers also should be mindful when responding to employee complaints of COVID-19 hazards or exposures. All complaints must be taken seriously and investigated, and under no circumstances should any employee be retaliated against for making a good faith report of a hazard – even if it turns out no hazard existed.
The ETS requires employers to maintain a record of all COVID-19 “cases” in the workplace (defined as a person who: (1) has a positive COVID-19 test; (2) is subject to a COVID-19-related order to isolate issued by a local or state health official; or (3) has died due to COVID-19), and to maintain the confidentiality of medical information.) These records will be at the top of any inspector’s “to do” list when conducting site inspections.
Also, employers must immediately report to Cal/OSHA any COVID-19-related “serious illness” (e.g., COVID-19 illness requiring inpatient hospitalization) or death that occurs. Employers that have made such reports in the past, or have been the subject of an inspection due to COVID-19-related concerns, should prepare for further inspections and ensure they address all open items.
Employers must stay current with the ever-changing requirements related to COVID-19-related workplace health and safety. Unfortunately, that is not a simple task. However, if employers regularly monitor updates from Cal/OSHA, OSHA, the California Labor Commissioner’s Office, CDPH, local public health departments, and Governor Newsom’s COVID-19 webpage, they will be relatively well prepared.