By Robert J. Reinertson
November 30, 2020
As Autumn began to descend upon us, the Occupational Safety and Health Administration (OSHA) demonstrated that it will indeed use the General Duty Clause (GDC) to cite employers for health and safety conditions related to COVID-19. This is a good time to revisit employers’ obligations under the GDC and how a lack of compliance can lead to OSHA citations.
The GDC serves as a sort of catch-all safety regulation when a more specific regulation applicable to a certain industry or to employers, in general, does not exist. Because OSHA does not have specific COVID-19 regulations, it has instead begun to issue citations against employers under this catch-all GDC for alleged health and safety deficiencies.
In the earlier months of the pandemic, OSHA was not very active in terms of enforcement activity related to COVID-19 conditions, relying instead on a series of guidelines. There have been calls from advocacy groups and members of Congress for OSHA to become more active in this area.
On its face, the GDC is deceptively simple. It requires an employer to furnish to its 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.” This means that if there is a recognized serious hazard in a workplace and the employer does not take reasonable steps to deal with it, the employer can be at risk for an OSHA citation.
To prove a violation of the GDC, OSHA must show the following:
- A condition or activity in the workplace presented a serious hazard;
- The hazard was recognized by the employer or the employer’s industry;
- The hazard was causing or likely to cause death or serious physical harm; and
- A feasible and effective means existed to materially reduce the hazard. This has been interpreted as meaning that it is sufficient for employers in such circumstances to reduce the hazard to the extent feasible.
So, what sorts of pandemic-related conditions has OSHA been citing? They include the following:
- On September 10, OSHA cited Smithfield Packaged Meats Corp. of Sioux Falls, South Dakota, for alleged failure to protect employees from the coronavirus, and proposed a penalty of $13,494. This was after at least 1,294 employees contracted the virus last spring and four died.
- On September 10, OSHA cited a healthcare facility in Louisiana for allegedly failing to ensure that employees wore proper protective equipment when treating patients. The proposed penalty was $13,494.
- On September 11, OSHA cited JBS Foods, Inc. of Greeley, Colorado, a meat-packing company operating as Swift Beef Company, under the GDC for allegedly failing to keep workers safe from COVID-19 and proposed a penalty of $15,615.
This was after nearly 300 workers at the facility were infected with COVID-19 since March, and seven died. The company also allegedly did not provide its injury and illness logs to OSHA in a timely fashion as requested after an inspection.
- On September 11, OSHA cited a residential care facility in New Jersey for allegedly failing to provide proper respiratory protection to employees, with proposed penalties of $28,070.
- On September 11, OSHA cited a medical center in New Jersey for allegedly failing to fit-test tight-fitting respirators on employees who were required to use them and to ensure that employees knew when to wear them. Proposed penalties were $9,639.
- On September 16, OSHA cited a dental practice in Massachusetts for failing to require employees to wear N-95 respirators, lack of a bloodborne pathogen protection program and failure to provide adequate eyewash stations. The practice was fined $9,500 for six serious citations and one other-than-serious citation.
So far, OSHA has emphasized enforcement activity in the health care and meat processing industries. However, as COVID-19 cases continue to increase across the country and more and more workers contract the virus on the job, it is likely that OSHA will expand enforcement to other areas of the economy, including agricultural sectors. Agricultural employers are advised to visit www.OSHA.gov for more information on the guidelines OSHA has issued, both in general and for a variety of industries and trades. Of particular note may be the “Employee Health and Food Safety Checklist for Human and Animal Food Operations During the COVID-19 Pandemic” that OSHA and the Food and Drug Administration collaborated on, which can be found at www.osha. gov/SLTC/covid-19/.
While these guidelines do not have the force of law in and of themselves, they could form the basis for GDC violations if employers have serious recognized hazards in their workplaces that they do not take action to abate.
© 2020 The Badger Common Tater Antigo, WI. Reprinted with permission
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