The major headlines about the Occupational Safety and Health Administration (OSHA) and COVID-19 over the last few weeks have all been focused on the fact that on January 13, 2022, the United States Supreme Court blocked OSHA’s vaccine mandate for employers with 100-plus employees. On January 25, 2022, OSHA officially withdrew the mandate.
But that doesn’t mean that OSHA has no role in enforcing workplace safety in connection with COVID-19. A stark reminder of OSHA’s enduring enforcement powers is a recent case in which significant fines were proposed by OSHA against an Ohio-based auto supplier because it failed to follow its own policies and federal guidance related to COVID-19 health and safety protocols.
OSHA’s Investigation and Allegations
According to a January 14, 2022, news release from OSHA, a complaint was lodged against the auto supplier alleging that it ignored guidelines to limit employee exposure to COVID-19 and that several employees became sick. OSHA then launched an investigation.
During its first inspection of the facility, OSHA found that 65 employees had tested positive for COVID-19. A few days later, 88 had tested positive. Five employees were hospitalized and two died, and OSHA determined that at least one of the deaths was work-related.
While investigators determined that the company issued a corporate-wide social distancing policy in March 2020 and trained employees in May 2020 on precautions for returning to work that included social distancing and mask wearing, OSHA found that the company did not adhere to these policies during the COVID-19 outbreak and OSHA inspection.
OSHA cited the company and proposed penalties of $26,527.
Implication for Employers
Given that we have now been dealing with the COVID-19 pandemic for two years, employers (and their employees) are understandably fatigued and finding it difficult to remain vigilant in terms of maintaining COVID-19 safety protocols. Many welcomed the Supreme Court’s ruling blocking OSHA from enforcing its large employer vaccine mandate. However, it’s important for employers to remember that OSHA—as well as other federal, state and local regulatory authorities—are still investigating violations of safety protocols, and levying penalties when appropriate.
Indeed, as demonstrated by the Ohio auto supplier case described above, OSHA still has the authority to regulate workplace safety—notwithstanding the Supreme Court’s ruling. OSHA’s authority derives from several provisions of federal law, including 29 C.F.R. § 1910.132-140 (Personal Protective Equipment), 29 C.F.R. § 1904 (Recording and Reporting Occupational Injuries and Illnesses), and 29 U.S.C.A. § 654 (General Duty Clause).
Accordingly, vigilance remains essential. If your business hasn’t audited its COVID-19 protocol compliance recently, or is uncertain of its obligations, please contact your Fraser Trebilcock attorney.
This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.
Elizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or email@example.com.