In November 2020, federal OSHA issued new guidance to provide insight into which standards are most-frequently cited during COVID-19-related inspections. These are inspection that are normally initiated via referrals, complaints, fatality investigations, and for the purposes of this enforcement data, the inspections occurred primarily at health care and protein processing facilities.
Notably, OSHA’s data did not include any General Duty Clause citations (under Section 5(a)(1) of the OSH Act), and the published list only involved three standards: respiratory protection (29 CFR 1910.134), personal protective equipment (PPE) hazard assessment (29 CFR 1910.132) and injury/illness recordkeeping (29 CFR Part 1904).
OSHA reports that the most frequently-cited alleged violations during COVID-related inspections were for:
Not performing appropriate fit testing of respirators
Failure to keep required records of work-related injury/illness and fatality cases
Improper storage of respirators and other PPE
Not conducting hazard assessment for COVID-19 to determine need for respirator or PPE
Insufficient training on safe use of respirators and/or other PPE in the workplace
Failure to establish/implement written respiratory protection program with site-specific procedures
Not providing medical evaluation before workers are fit-tested or use a respirator
It is important to note that while OSHA has temporarily exercised some enforcement discretion on respirators, employers must demonstrate and document “good faith” efforts to comply with standards! There are also 14 states that now have specific COVID-19 workplace safety and health requirements, some enforceable through state plan OSHA agencies, and some through state health departments. Multi-state employers must be careful not to provide disparate protections for workers and third parties, such as temporary staffers, based on where the worksite is located. Best practices call for adopting programs that are geared toward the most protective standards in force at any company location.
For more information on COVID-19 compliance or program development, contact Adele Abrams at safetylawyer@gmail.com.
