TOP TIP: Employers – State Safety and Health Departments Can Find COVID Violations Too!

By Fiona W. Ong - Shawe Rosenthal LLP

March 28, 2022

Even though the Vax-or-Test Emergency Temporary Standard is no more, the federal Occupational Safety and Health Administration can still hold employers liable for failing to protect workers from COVID-19 under existing safety standards. We now remind you that state OSH agencies may also get involved, as the State of Washington’s Department of Labor & Industries (WDL&I) demonstrated this month when it imposed more than $285,000 in fines in connection with a COVID-19 outbreak at a multi-employer warehouse.

As the WDL&I announced in a February 8, 2022 press release, 253 workers in the warehouse (approximately 1 in 4) tested positive for COVID-19 over a three month period. The county health department informed the WDL&I, which opened several inspections at the warehouse. Among the violations that it found were the following:

• Allowing/Insisting COVID-positive employees report to work
• Failure to reduce staffing during the outbreak
• Failure to enforce mask use in company vehicles and in the workplace
• Failure to verify worker vaccination status (the state required mask use for unvaccinated workers)
• Failure to conduct screening and comply with social distancing measures in transport vans
• Failure to report hospitalizations
• Failure to provide contact information for those who tested positive
• Failure to notify workers of close contact with COVID-positive co-workers
• Failure to have COVID-19 plans

Realistically, not all state OSH agencies will be as engaged in COVID-19 enforcement activity as that in Washington. Nonetheless, some will certainly be – in addition to federal OSHA’s expressly asserted focus on such activity. Employers must continue to be thoughtful about taking appropriate measures to protect their workers from COVID-19.

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