Failure to Enforce COVID-19 Preventative Measures Results in Serious OSH Act Violations

January 31, 2022

The General Duty Clause of the Occupational Safety and Health (OSH) Act of 1970 requires employers to furnish a place of employment free from recognized and serious hazards, even if the danger isn’t specifically addressed by an established standard. With COVID-19’s emergence, the Occupational Safety and Health Administration (OSHA) has committed to addressing employers’ failure to protect workers from the coronavirus by issuing violations of the General Duty Clause. Specifically, the agency has shown the importance of implementing and enforcing virus policies to keep workers safe.

General Duty Clause

Enacted in 1970, the OSH Act’s purpose is to ensure every worker in the United States is provided with safe and healthy working conditions. Included in the Act is the General Duty Clause, which says every employer must furnish employment and a place of employment free from recognized hazards that cause (or are likely to cause) death or serious physical harm to employees.

Under the clause, employers must protect workers from serious and recognized workplace hazards even when no standard is established for the danger. Some examples include indoor air quality and workplace violence. In the COVID-19 era, however, a new hazard has emerged to the forefront.

COVID-19’s Serious Consequences

When the SARS-CoV-2 virus showed up in late 2019, OSHA had no specific rule or standard readily in place to address the hazards created by the infection. Of course, COVID-19 certainly posed a recognized hazard that causes death or serious physical harm to those who are infected. Accordingly, the agency was able to address the virus’ dangerous presence in the workplace through the General Duty Clause.

As a result, the failure to protect workers from COVID-19-related hazards can bring serious consequences. In fact, OSHA has made clear that simply having policies related to the virus isn’t enough to avoid violating the clause. Instead, employers are obligated to actually follow preventative measures to protect their employees.

Recent Case

In May 2021, OSHA responded to a complaint alleging a Wisconsin company failed to protect employees from COVID-19’s dangers. The business, Amston Supply Inc., had a policy requiring employees to screen for symptoms, wear face masks, and maintain social distancing to prevent coronavirus infections. The agency discovered, however, the employer failed to implement or follow the policy, allowing workers to congregate closely, without face coverings, in several work areas.

In other words, Amston failed to require social distancing, screen employees for COVID-19 symptoms, and enforce face covering requirements contrary to its own policy and U.S. Centers for Disease Control and Prevention (CDC) guidance. After the company failed to enforce its own policy, there were at least coronavirus-positive illnesses and one fatality among its employees between April 12 and May 18, 2021.

After the investigation, OSHA issued a serious violation to Amston on October 12 under the General Duty Clause. The proposed penalty amounted to $9,557. The company was given 15 days to abate the violation and pay the proposed penalties.

OSHA provided several acceptable ways for Amston to abate the COVID-19 hazard, including separating any employees who appear to have signs or symptoms of infection from other workers immediately and counsel workers about the importance of self-isolation if they come into close contact with the virus. Notably, the agency pointed out enforcing and following existing company coronavirus policies also would abate the hazard.

Bottom Line

While specific COVID-19-related standards are on the horizon, OSHA will continue to use the General Duty Clause to ensure worker safety from the hazards. You should not only create virus-related safety policies but also ensure they are being enforced and followed by everyone at the workplace. If you have concerns about enacting or implementing the safety policies, consult with a qualified attorney and local, state, and federal guidance.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.