Employers, Don’t Ignore COVID Just Because the Vax-or-Test ETS Is Gone

By Fiona W. Ong - Shawe Rosenthal LLP

February 17, 2022

Although the Occupational Safety and Health Administration’s attempt to issue a general workplace COVID standard was unsuccessful, employers should not assume that they are off the hook with regard to COVID preventative measures, as one company recently learned.

The U.S. Department of Labor recently issued a press release to announce its citation of an auto-parts supplier for failing to protect its workers against COVID-19 in the workplace. This press release effectively warns other employers to comply with CDC and OSHA workplace guidance on COVID-19 prevention and remediation. Although there is no current COVID-specific standard, OSHA is making good on its commitment to use existing standards, including the General Duty clause, which requires employers to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

The employer at issue was found to have violated the General Duty clause by failing to protect its workers against COVID-19. Specifically, at the beginning of the pandemic, in March 2020, the employer had issued a corporate-wide social distancing policy, and in May 2020, had trained employees on return-to-work precautions that included mask-wearing and social distancing. However, in a COVID surge over a year later, in August 2021, 88 employees fell ill with COVID, with one ultimately dying.

In its citation, OSHA asserted that the employer failed to enforce its own COVID-prevention policy regarding mask-wearing. More specifically, it found that, “Employees worked and congregated in close proximity without face coverings or without wearing face coverings over nose and mouth, as recommended by the Centers for Disease Control and Prevention (CDC), leading to exposures among unvaccinated employees.” (Emphasis added). The employer further “failed to take immediate and effective steps to identify, inform, and remove all potentially exposed employees.”

Instructive for other employers, OSHA provided “feasible and acceptable means of abatement” as follows (emphasis added):

• Periodically review the COVID-19 disease rates in the community and conduct a hazard assessment to identify employee practices and workplace behaviors that could increase risks for COVID-19 transmission, and update control measure or implement new ones as needed.
• Re-evaluate existing COVID-19 company procedures and retrain workforce as necessary when updates (e.g. due to COVID-19 variants) are necessary or when deficiencies in the program are noticed.
• Implement contact tracing to ensure that employees who have worked near someone who tested positive for COVID-19, and/or develop symptoms of COVID-19 are informed of their potential exposure to the virus, encouraged to quarantine, and excluded from the facility until they meet the conditions to return to work per the CDC guidelines.
• Screen employee(s) for COVID-19 symptoms and potential COVID-19 exposure. Employees who appear to have symptoms upon arrival at work or who become sick during the day must immediately be separated from other employees, customers, and visitors; sent home; and encouraged to seek medical attention. Have a procedure in place for the safe isolation of employees who become sick while at work as they may need to be transported home or to a healthcare provider. Utilize, develop, and implement flexible sick leave and supportive policies and practices.
• Follow and implement guidelines from the CDC, other federal agencies (e.g., Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security (CISC)), and State and Municipal public health recommendations for exposed employees (close contacts) to quarantine, telework if possible, and self-monitor for symptoms.
• Enforce physical distancing measures to ensure that everyone (especially asymptomatic positive employees) in the workplace maintains at least six feet of distance. Install transparent, impermeable barriers at locations where physical distancing is not possible. Provide and require workers to wear face coverings or surgical masks, as appropriate, unless their work task requires a respirator or other PPE.
• Facilitate employees getting vaccinated by granting paid time off for employees to get vaccinated and recover from any side effects. Vaccination is the key element in a multi-layered approach to protect workers. Vaccines authorized by the U.S. Food and Drug Administration are highly effective at protecting vaccinated people against asymptomatic and severe COVID-19 illness and death.

Although we are all weary of the pandemic, employers should not relax their preventative measures and should be prepared to adjust them to changing circumstances. And the “means of abatement” suggested by OSHA certainly provides employers with an overview of the measures that OSHA thinks should be in place.

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