By Katherine Goelz
On October 2, the U.S. Occupational Safety and Health Administration (OSHA) published its newest version of answers to frequently-asked questions (FAQs) regarding reporting requirements for “work-related cases of the coronavirus.” These FAQs updated the guidance from September 30; the FAQs were originally published in July but had been removed due to the confusion it caused employers.
According to the newest FAQ’s, employers must report only in-patient hospitalizations and fatalities from “work-related cases of coronavirus” under the Code of Federal Regulations, 29 C.F.R. § 1904.39(b)(6). Employers are only required to “report such hospitalization within 24 hours of knowing both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19.” Under this rule, a COVID-19 related “incident” is defined as “an exposure to SARS-CoV-2 in the workplace.” In its guidance, OSHA is using the term “SARS-CoV-2” interchangeably with COVID-19.
Under 29 C.F.R. § 1904.39(b)(6), OSHA also requires that an employer report any employee deaths that “occur within 30 days of an exposure to SARS-CoV-2 at work. The employer must report the fatality within eight hours of knowing both that the employee has died, and that the cause of death was a work-related case of COVID-19.”
On October 9, OSHA published a National News Release which detailed proposed penalties of $913,133 from sixty-two (62) different citations since the beginning of the coronavirus pandemic. In the release, OSHA detailed violations of these reporting rules and several others uncovered during business inspections. These additional violations included failure to implement a written respiratory protection program, failure to record an injury or illness on OSHA recordkeeping forms, and failure to provide a medical evaluation, respirator fit test, or training on the proper use of a respirator and personal protective equipment.
In total, twenty-five (25) establishments were cited for coronavirus-related citations of $429,064 relating to one of the violations from September 25 to October 1, alone. This number is in addition to thirty-seven (37) citations previously announced which brought the total number of citations to 62 and total proposed penalties of $913,133.
The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), has criticized the coronavirus enforcement by OSHA, calling the fines and severity of OSHA violations too low. The highest proposed penalty issued to any of the violators was $28,070.
Rebecca Reindel, AFL-CIO director of safety and health, condemned these fines, noting the expense is unlikely to “deter other employers” and that the citations should “reflect the magnitude of the problem.” According to the “Death on the Job” report, published by AFL-CIO on October 6, the average proposed penalty for a fatality-based inspection by OSHA was $22,425.
AFL-CIO President Richard Trumka tied weak efforts on workplace safety enforcement to failures to protect workers from contracting COVID-19 on the job. Speaking on the release of the report, he stated that, “For nearly four years the Trump administration has been downplaying the importance of safety agencies.” Trumka called for the administration to issue an emergency temporary standard, compelling employers to develop policies that will protect workers from COVID-19.
At this time, Labor Department leaders, OSHA, and the Trump administration have not moved forward with such a rule, instead relying upon OSHA’s General Duty Clause, Section 5(a)(1). As outlined in the April 30 OSHA-3990 publication, this clause “requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.” It remains to be seen whether OSHA’s proposed penalties will stem the tide of further violations by businesses.
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