In recent weeks, we have seen a marked increase in employers receiving notice of complaints to state and federal occupational safety and health agencies from workers regarding COVID-19 infection control procedures. Many of these complaints cite the lack of implementation or enforcement of specific measures, such as mask wearing, social distancing, or temperature checks. To date, OSHA has not issued a specific workplace safety standard for COVID-19. However, employers can be cited under the “General Duty Clause” if they put employees at unreasonable risk of death or serious injury.
Employers can largely avoid these citations by following CDC and OSHA COVID-19 control guidelines. While not every recommendation needs to be implemented, the employer should have a clear infection control plan, with documentation of measures taken and communicated to employees. Currently, OSHA is not conducting many in-person inspections based on employee complaints. In most cases, the agency will send the employer notice of the complaint and request a written response. Employers should carefully review the complaint and provide a full response, including documents or photographs that demonstrate their COVID-19 control measures.
For some that face a higher risk of infection such as health care providers, residential care workers, and first responders, employee complaints can lead to an active OSHA investigation. The agency is under increasing political pressure to cite employers viewed as taking inadequate steps to protect employee health and safety. OSHA has 180 days from the opening of an investigation to issue citations. As a result, employers subject to investigations that began in April can expect a citation or the closing of the matter next month.
For health care and other employers that require employees to wear N95 or similar masks, OSHA requires that such employees undergo fit testing under the agency’s respirator standard. Employers that fail to complete and document such testing can be subject to citations under that safety standard.