A Contractor’s Guide for OSHA Compliance in the Coronavirus Era

As COVID-19, or the “coronavirus,” continues to dramatically impact the United States, employers across various industries continue to face new state-mandated rules and regulations aimed at protecting both employees and the general public. In addition, employers are facing increased scrutiny by the Occupational Safety and Health Administration (OSHA) for failing to strictly provide employees with coronavirus-related protections.

OSHA inspections are generally prompted for various reasons, including, but not limited to, fatalities or “catastrophes”; referrals of hazards from other government agencies, individuals, organizations, or the media; employee complaints; or for routine inspection. Since the start of the coronavirus pandemic through November 26, 2020, OSHA has received more than 12,750 complaints and referrals, and has opened nearly 1,400 coronavirus-related workplace inspections. In that same time frame, state agencies have received nearly 42,000 complaints and referrals, and have opened approximately 4,200 coronavirus-related inspections. In response to those complaints, referrals, and inspections, OSHA has cited nearly 250 businesses for violations relating to the coronavirus, resulting in proposed penalties of at least $3,403,139.

Specifically, OSHA inspections have resulted in coronavirus-related citations to employers for failing to:

· Implement a written respiratory protection program.

· Provide a medical evaluation, respirator fit test, training on the proper use of a respirator and other personal protective equipment (PPE).

· Report an injury, illness, or fatality.

· Record an injury or illness on OSHA recordkeeping forms.

· Comply with the General Duty Clause of the Occupational Safety and Health Act of 1970.

In addition to those more specific OSHA violations above, the General Duty Clause can generally serve as a basis for any citation. The General Duty Clause requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees, and to comply with all standards, rules, regulations, and orders promulgated under the Occupational Safety and Health Act of 1970. Accordingly, an employer could be in violation of the General Duty Clause when the hazard is COVID-19. Although the most common violations are linked to the PPE standards, recording requirements, and the General Duty Clause, employers should be aware that OSHA has the power to issue citations for any violation observed during an inspection, even if those violations are unrelated to COVID-19.

Violations for workplace safety could result in costly penalties. Specifically, as of January 15, 2020, the agency’s maximum per-violation monetary penalties are $134,937 for willful or repeated violations, $13,494 for serious, other-than-serious, or posting requirements violations, and $13,494 for failure to abate existing violations. These are maximum fines, so the actual fine levied by OSHA could be, and in most coronavirus-related cases has been, less.

Avoiding Coronavirus-Related OSHA Violations

Notably, the highest number of complaints have originated from the healthcare, retail, restaurant, and construction industries, in that order. As of the date of this article, however, there are no OSHA regulations or standards specific to the coronavirus.

So, how can contractors avoid coronavirus-related OSHA violations?

In an effort to assist employers, OSHA points to its general standards and directives that may be most applicable to reduce worker exposure to the coronavirus. In addition to those general standards and directives, on April 22, 2020, OSHA issued safety guidance aimed at reducing construction workers’ risk of exposure to the coronavirus. The substance of the guidance presents no new regulations but provides contractors with a clear and concise list of practical advice regarding areas such as enhanced workplace cleaning, social distancing in the workplace or at the construction site, and face coverings and other protective equipment.

More specifically, when working in the construction industry, OSHA recommends that the following actions be taken to reduce the risk of exposure to the coronavirus:

· Encourage workers to stay home if they are sick.

· Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.

· Continue to use other normal control measures, including PPE, necessary to protect workers from other job hazards associated with construction activities.

· Advise workers to avoid physical contact with others and direct employees/contractors/visitors to increase personal space to at least six feet where possible. Where work trailers are used, all workers should maintain social distancing while in the trailers;

· Train workers how to properly put on, use/wear, and take off protective clothing and equipment.

· Encourage respiratory etiquette, including covering coughs and sneezes.

· Promote personal hygiene. If workers do not have immediate access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol;

· Use Environmental Protection Agency-approved cleaning chemicals from List N (www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2) or that have label claims against the coronavirus.

· To the extent tools or equipment must be shared, provide and instruct workers to use alcohol-based wipes to clean tools before and after use. When cleaning tools and equipment, workers should consult manufacturer recommendations for proper cleaning techniques and restrictions.

· Keep in-person meetings (including toolbox talks and safety meetings) as short as possible, limit the number of workers in attendance, and use social distancing practices.

· Clean and disinfect portable jobsite toilets regularly. Hand sanitizer dispensers should be filled regularly. Frequently-touched items (i.e., door pulls and toilet seats) should be disinfected.

· Encourage workers to report and safety and health concerns.

While many of these recommendations are standard operating guidelines with respect to jobsites, it is increasingly important to ensure that these guidelines are closely followed to prevent any unanticipated effects of the coronavirus, complaints or referrals, and to be better prepared in the event of an OSHA inspection.

Steps to Follow After a Citation

My company has been cited by OSHA. Now what?

Should OSHA determine that a contractor is in violation of OSHA standards warranting a citation and notification of penalty, there are several steps that contractors should take.

First, contractors must keep track of the 15 business days in which to contest the citation and penalties and the few exceptions which apply to that time frame. Occasionally, contractors lose track of the deadline during informal settlement negotiations in hopes of reaching an agreement. However, if that settlement cannot be finalized within those first 15 business days, then the contractor must file a formal contest even if its only reason for doing so is to preserve its rights.

During those first 15 business days, contractors should also determine whether they are seeking a complete reversal of the citation and fine, a reclassification of the citation to a lesser penalty or a change in the description of the offense, or if they are better suited to simply pay the fine. Contractors are encouraged to consult with an attorney when making these determinations, particularly in the event of a death or serious injury, whether coronavirus-related or otherwise.

A contractor has three grounds for contesting an OSHA citation: the citation itself, the proposed penalty, and/or the abatement date. Once a contractor has filed a notice of intent to contest, the citations, including the proposed penalties and abatement dates, are put on hold pending a final resolution, either through settlement or trial. In most cases, the dispute will end in settlement. However, barring a settlement, the area office forwards the notice of contest to the OSHA Review Commission, which assigns the case to an administrative law judge, who schedules a hearing. During the review, contractors are given an opportunity to serve discovery, conduct depositions and cross examination of witnesses, and may also appeal the decision of the administrative law judge for a review by the full commission.

Because the contractor will be defending itself in a court-like setting, it is important that the contractor maintain detailed records about the company’s safety procedures, including how the company has addressed and corrected any issues identified by the initial inspection and, if the contractor does decide to contest a citation, contractors are strongly encouraged to consult an attorney.

About the author: Keith A. Boyette is an attorney with Anderson Jones, PLLC in Raleigh, North Carolina, a law firm with attorneys licensed in North Carolina, South Carolina, and Georgia. For more information or questions about this article, please email him at kboyette@andersonandjones.com.

Author’s note: This article is intended only for informational purposes and should not be construed as legal advice.

U.S. Department 0f Labor Issues Stronger Workplace Guidance on Coronavirus

The U.S. Department of Labor announced that its Occupational Safety and Health Administration has issued stronger worker safety guidance to help employers and workers implement a coronavirus protection program and better identify risks which could lead to exposure and contraction. Last week, President Biden directed OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure.

Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” provides updated guidance and recommendations, and outlines existing safety and health standards. OSHA is providing the recommendations to assist employers in providing a safe and healthful workplace.

“More than 400,000 Americans have died from COVID-19 and millions of people are out of work as a result of this crisis. Employers and workers can help our nation fight and overcome this deadly pandemic by committing themselves to making their workplaces as safe as possible,” said Senior Counselor to the Secretary of Labor M. Patricia Smith. “The recommendations in OSHA’s updated guidance will help us defeat the virus, strengthen our economy and bring an end to the staggering human and economic toll that the coronavirus has taken on our nation.”

Implementing a coronavirus protection program is the most effective way to reduce the spread of the virus. The guidance announced today recommends several essential elements in a prevention program:

  • Conduct a hazard assessment.
  • Identify control measures to limit the spread of the virus.
  • Adopt policies for employee absences that don’t punish workers as a way to encourage potentially infected workers to remain home.
  • Ensure that coronavirus policies and procedures are communicated to both English and non-English speaking workers.
  • Implement protections from retaliation for workers who raise coronavirus-related concerns.

“OSHA is updating its guidance to reduce the risk of transmission of the coronavirus and improve worker protections so businesses can operate safely and employees can stay safe and working,” said Principal Deputy Assistant Secretary for Occupational Safety and Health Jim Frederick.

The guidance details key measures for limiting coronavirus’s spread, including ensuring infected or potentially infected people are not in the workplace, implementing and following physical distancing protocols and using surgical masks or cloth face coverings. It also provides guidance on use of personal protective equipment, improving ventilation, good hygiene and routine cleaning.

OSHA will update today’s guidance as developments in science, best practices and standards warrant.

This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, informational in content and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. 

For more information, visit https://www.osha.gov

U.S. Department of Labor Announces Annual Adjustments to OSHA Civil Penalties

The U.S. Department of Labor has announced adjustments to Occupational Safety and Health Administration (OSHA) civil penalty amounts based on cost-of-living adjustments for 2021.

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act to advance the effectiveness of civil monetary penalties and to maintain their deterrent effect. Under the Act, agencies are required to publish “catch-up” rules that adjust the level of civil monetary penalties, and make subsequent annual adjustments for inflation no later than January 15 of each year.

OSHA’s maximum penalties for serious and other-than-serious violations will increase from $13,494 per violation to $13,653 per violation. The maximum penalty for willful or repeated violations will increase from $134,937 per violation to $136,532 per violation.

Visit the OSHA Penalties page for more information. The Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2021 final rule is effective January 15, 2021, and the increased penalty levels apply to any penalties assessed after January 15, 2021.

For more information, visit www.osha.gov.

U.S. Department of Labor Reminds Specific Employers to Submit Required 2020 Injury and Illness Data

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) reminds employers that the agency will begin collecting calendar year 2020 Form 300A data on Jan. 2, 2021. Employers must submit the form electronically by March 2, 2021.

Electronic submissions are required by establishments with 250 or more employees currently required to keep OSHA injury and illness records, and establishments with 20-249 employees classified in specific industries with historically high rates of occupational injuries and illnesses.

Visit the Injury Tracking Application Electronic Submission of Injury and Illness Records to OSHA for more information and a link to the Injury Tracking Application.

For more information, visit www.osha.gov.

U.S. Department of Labor Seeks Members to Serve on Committee For Improving Construction Workers’ Safety and Health

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is accepting nominations for individuals to serve on the Advisory Committee on Construction Safety and Health. The 15-member group advises the Secretary of Labor and Assistant Secretary of Labor for Occupational Safety and Health on developing standards and policies affecting the construction industry.

OSHA is seeking nominations for 14 members with experience and expertise in construction-related safety and health issues to fill five employee, five employer, two state safety and health agency, and two public representative vacancies. The members generally serve two-year staggered terms, except the representative designated by the Department of Health and Human Services and appointed by the Secretary of Labor, who serves indefinitely.

Nominations may be submitted at http://www.regulations.gov, the Federal eRulemaking Portal, by mail, or facsimile. Read the Federal Register notice for submission details. The deadline for submissions is Jan. 8, 2021.

For more information, visit www.osha.gov.

OSHA Inspection Program To Target Workplaces With Highest Injury and Illness Rates

The U.S. Department of Labor announced today that its Occupational Safety and Health Administration (OSHA) is updating its inspection program that directs agency enforcement resources to establishments with the highest rates of injuries and illnesses.

The Site-Specific Targeting (SST) Directive is OSHA’s primary targeting program for non-construction establishments with 20 or more employees. The agency selects establishments based on injury and illness data employers submitted on Form 300A for calendar years 2017-2019.

The new directive replaces Site-Specific Targeting 2016, and includes significant changes including the creation of a new targeting category for establishments indicating consistent injury and illness rate increases over the three-year data collection period. It also allows records only inspections to occur when a compliance safety and health officer determines incorrect data led to an establishment’s inclusion in the program. This change ensures OSHA will conduct a full inspection only when the employer has an actual elevated injury and illness experience.

In addition to the SST program, OSHA implements both national and local emphasis programs to target high-risk hazards and industries. Learn more about these emphasis programs.

OSHA’s On-Site Consultation Program offers no-cost and confidential occupational safety and health services to small- and medium-sized businesses to identify workplace hazards, provide advice for compliance with OSHA standards, and assist in establishing and improving safety and health programs. On-Site Consultation services are separate from enforcement and do not result in penalties or citations. 

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. 

For more information, visit www.osha.gov.

U.S. Department of Labor Issues FAQ Confirming N95 Respirators Protect Against the Coronavirus

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published a set of Frequently Asked Questions (FAQ) on how N95 respirators effectively protect wearers from coronavirus exposure.

OSHA is aware of incorrect claims stating that N95 respirators filter does not capture particles as small as the virus that causes the coronavirus. OSHA’s new FAQ explains why an N95 respirator is effective at protecting users from the virus.

Visit OSHA’s COVID-19 webpage for further information and resources about the coronavirus.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s workers by setting and enforcing standards, and providing training, education, and assistance.

For more information, visit www.osha.gov.

U.S. Department of Labor Encourages Employers to Mark National Safe + Sound Week

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) encourages America’s workplaces to commit to workplace safety and health by participating in Safe + Sound Week, August 10-16, 2020.

Safe + Sound Week is a nationwide event that recognizes the successes of workplace safety and health programs and offers information and ideas on how to keep America’s workers safe.

In 2019, more than 3,300 businesses helped raise awareness about workers’ safety and health.  Successful safety and health programs can identify and manage workplace hazards before they cause injury or illness.

Participating in Safe + Sound Week is simple. Organizations of any size or in any industry looking for an opportunity to show their commitment to safety can participate. Start by visiting www.osha.gov/safeandsoundweek for more information, resources, and tools to help plan and promote safety events.

For more information, visit www.osha.gov.

National Safety Stand-Down to Prevent Falls Rescheduled for September 14-18

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that the 7th annual National Stand-Down to Prevent Falls in Construction has been rescheduled for September 14-18, 2020. While OSHA postponed the event earlier this year due to the coronavirus pandemic, the agency continues to encourage employers to promote fall safety virtually or while employing social distancing practices among small groups.

OSHA is partnering with other safety organizations in 2020 to encourage employers to provide safety demonstrations on fall protection equipment, conduct talks regarding fall-related hazards, safety policies, goals and expectations, and promote the event by using the #StandDown4Safety on social media.

“This national initiative brings much needed attention to falls, which continue to be the leading cause of fatalities in construction,” said Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “Since OSHA began doing fall prevention stand-down events six years ago, nearly 10 million workers have been reached by our message that falls are preventable. These efforts have been successful in raising awareness of the recognition, evaluation, and control of fall hazards.”

Extensive resources are available on OSHA’s Fall Prevention Stand-Down webpage at http://www.osha.gov/StopFallsStandDown and are presented in various languages, including English, Spanish, Russian, and Portuguese. Resources include a brief video entitled “5 Ways to Prevent Workplace Falls,” which encourages employers to educate and train workers on fall protection equipment; a series of fall prevention publications, with an emphasis on construction, and fall prevention videos; OSHA’s Fall Prevention Training Guide, which provides a lesson plan for employers, including several Toolbox Talks; and guidance on ladder and scaffolding safety.

Employers are also encouraged to provide feedback after their events, and obtain a personalized certificate of participation.

The national safety stand-down is part of OSHA’s fall prevention campaign, and was developed in partnership with the National Institute for Occupational Safety and Health, National Occupational Research Agenda, and The Center for Construction Research and Training.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.

For more information, visit www.osha.gov.

Safety Obligations Under the OSH Act Can Extend to Non-Employees and Other Trades

The nature of roofing (particularly re-roofing) frequently involves the presence of non-employees on or around active construction sites. This is true in both the residential and commercial contexts. However, the risk increases significantly on commercial projects, such as retail and mixed-use projects, where many parties can be present, including the property owners’ customers and employees, as well as other trades working at the project simultaneously.

As such, it is essential that roofing contractors understand the scope of their obligations to non-employees under the Occupational Safety and Health Act of 1970 (OSH Act). While accidents and injuries can certainly trigger an investigation by OSHA, employers are frequently charged with violations of the OSH Act for merely failing to implement appropriate procedures. Not to be taken lightly, OSHA citations carry significant consequences, including penalties of up to $134,937 per violation, as well as creating a stigma against the company and loss of future opportunities. Moreover, company owners may not always be free to “walk away” from these consequences by closing the business (a common misbelief in the industry).

In the OSH Act, Congress authorized the Secretary of Labor to develop safety and health standards (OSHA regulations). One of the most important of these standards to contractors, arguably, is 29 CFR 1910.12, which provides: “Each employer shall protect the employment and places of employment of each of his employees engaged in construction work.” [Emphasis added.] This provision, like OSHA’s general duty clause, seems to imply that OSHA-imposed obligations extend only to an employer’s own employees. However, this is frequently not the case.

For many decades, the phrase “his employees” has been a major point of contention because OSHA has frequently penalized employers for hazards which did not affect the employers’ own employees. While early court decisions initially rejected OSHA’s imposition of liability in these circumstances, the tide eventually shifted, and now the opposite is true. Today, most courts will impose liability under OSHA’s “Multi-Employer Citation Policy” where the contractor “could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.” This is true even where the contractor’s own employees were completely unaffected, or even absent when the hazard occurred.

While the borders of OSHA’s policy are unclear and still developing, contractors should at least suspect they may be held responsible for the safety violations at a jobsite if they either: (1) created the hazard; or (2) exercised some degree of control over the subject worksite. With that in mind, roofing contractors can address this risk preemptively by starting with a plan to mitigate hazards and potential liability on their jobsites.

Identifying Risk

One method of doing so is by creating a Jobsite Hazard Analysis (JHA). According to OSHA, a JHA “is a technique that focuses on job tasks as a way to identify hazards before they occur.” By identifying risks, such as exposure of the public and other trades to an active construction site, roofing contractors can implement effective measures to mitigate known hazards.

While planning requirements will vary by jobsite, most roofing contractors’ JHA should address the following questions on this topic:

  • Will non-employees be present at the worksite during active construction? Could they gain access without the company’s knowledge or consent?
  • Can measures be taken to reduce or eliminate access to the worksite by non-employees?
  • What types of hazards could non-employees be exposed to? (e.g.,falling debris)
  • What steps will the company take to reduce or eliminate risks to non-employees?

In addition to addressing these risks in company policies, such as JHAs and a safety manual, it is also prudent to include provisions in the company’s contract which seek to limit exposure of non-employees to hazards. For example, the roofing contractor could include a provision in the contract which forbids the property owner’s employees from using certain entrances to the building during specific phases of construction. Roofing contractors may also seek indemnification from owners for claims of third parties based upon third parties’ failure to comply with contractual requirements. 

Under any circumstances, roofing contractors should take a preemptive approach to hazards, understanding the adage, “an ounce of prevention is worth a pound of cure,” is especially true in their industry. The first step in this process is assessing and appreciating the risks that safety hazards present. The second is implementing proactive safety policies which seek to eliminate or reduce those risks.

About the author: Travis S. McConnell is a construction law attorney with Cotney Construction Law, LLP. McConnell’s legal practice focuses on all aspects of construction law. He works extensively on matters relating to OSHA defense, which includes the management and development of safety and health strategies for construction contractors across the United States. McConnell’s OSHA practice concentrates on litigation and the appeals of citations involving catastrophic construction related accidents. He can be contacted by email at tmcconnell@CotneyCL.com.