With a steady increase of reported COVID-19 infections, employers face increased risks regarding their employees’ safety. Risks include potential fines and other penalties from the Occupational Safety and Health Administration (OSHA) for violation of the OSHA Act.
Employers Have an Obligation
Under the OSHA Act, employers have an obligation to “furnish to each of his 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.” https://www.osha.gov/laws-regs/oshact/section5-duties
Since many employees working outside of their homes often physically interact with other people, employers should take steps to limit their employees’ risk of infection. To help employers reduce the risk of worker exposure to COVID-19, OSHA recently issued Guidance on Preparing Workplaces for COVID-19. https://www.osha.gov/Publications/OSHA3990.pdf
In addition to this OSHA guidance, the Centers for Disease Control and Prevention (CDC) issued Resources for Businesses and Employers, which also provides guidance on how employers can prepare for and respond to COVID-19. https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html
Employers should review both OSHA and CDC guidance and follow recommended procedures, especially if their employees are in jobs classified as high or very high exposure risk. OSHA and CDC guidance discusses different steps employers may take to protect employees, including providing Personal Protective Equipment (PPE). The type of PPE that an employer will need to provide can vary based on the employee’s risk classification or occupation. For example, OSHA does not recommend PPE for workers in the lower exposure group, but workers in a very high risk group would likely need to wear gloves, a gown, face shield, and in some cases a respirator.
OSHA has Received Thousands of Complaints
If an employee feels that their working environment threatens physical harm or an imminent danger, the employee can make a complaint to OSHA. https://www.osha.gov/as/opa/worker/handling.html. Since the onset of the pandemic, OSHA has received thousands of complaints against employers related to COVID-19, and OSHA recently provided data showing an increase in the number of OSHA complaints and inspections. https://www.osha.gov/enforcement/covid-19-data#complaints_selected. If an employer does not furnish a place of employment free from recognized hazards, that employer can be subject to civil penalties for each violation (and/or imprisonment of up to six months if willful). https://www.osha.gov/laws-regs/oshact/section_17.
Employers Face Risks Beyond OSHA Violations
Employers face risks from COVID-19 beyond OSHA violations, as employees can bring lawsuits against their employers for claims including negligence and wrongful death. Since the start of the pandemic, employees have already begun filing claims against employers stemming from COVID-19, including lawsuits against retailer Walmart.
Employers should take actions recommended under OSHA and CDC guidance to minimize employee risks related to COVID-19. An employer’s failure to protect its employees can result in potential fines, lawsuits, or even imprisonment.
Please note that this summary is designed to provide general information, is not intended to constitute legal advice, and should not be utilized as a substitute for professional services in specific situations. If legal advice or other expert assistance is required, please consult with an attorney.
By: Attorney Brendan Cassidy