OSHA citation sheds light on Biden approach to COVID-19 enforcement

Missouri Employment Law Letter
March 2021 Publications

The Occupational Safety and Health Administration (OSHA) recently issued a citation shedding light on its approach to COVID-19 enforcement under the Biden administration. The agency cited a Missouri automotive manufacturer under the Occupational Safety and Health Act’s (OSH Act) General Duty Clause after six employees became ill with the virus and one died as a result of the complications. The citation is informative about OSHA’s expectations for employers’ adherence to social distancing and mask usage policies in the workplace.

Facts and findings in Missouri case

According to OSHA, two employees working less than two feet apart jointly operated a press for hours at a time and tested positive for COVID-19. Neither worker had been wearing a face mask. Ten days later, two more press operators tested positive for the virus, and one of them died.

The OSHA citation alleges the employer failed to implement social distancing practices or enforce the use of face masks at its facility. The employer’s response isn’t known, but it can contest the findings.

What OSHA’s action tells us

Social distancing. Based on OSHA’s allegations, it appears employees were unable to maintain six feet of distance between each other for at least some of their tasks. Although the agency has indicated worksites should be configured to facilitate social distancing whenever possible, certain tasks at fixed workstations can make the goal unfeasible. In those circumstances, however, the agency expects employers to use other infection control practices, such as enforcing mask usage and installing physical barriers.

Mask mandates. OSHA continues to expect strict enforcement of mask mandates in the workplace. Be sure supervisory employees remain vigilant and actively enforce your mask usage policies. It isn’t enough to institute the policy, especially if it’s rarely enforced, because employees can begin to view the standard as optional. Whenever possible, you should keep records to show you enforced it.

Physical barriers. Although social distancing is the preferred “first line of defense,” you can install physical barriers at stations where employees are unable to maintain six feet of separation while working. OSHA’s guidance suggests using Plexiglas or flexible strip curtains. In addition, you should take the workstation configuration into consideration when you’re installing the barriers:

  • If employees are typically in a seated position, install the barrier to block face-to-face pathways at that height.
  • If they perform their work in a standing posture, place the barrier at a higher location.
  • If they need to pass or transfer items past the physical barrier, the opening should be as small as possible.

Air ventilation. The recent Missouri citation didn’t mention air ventilation, but updated OSHA guidance issued by the Biden administration offers some suggestions. In a nutshell, you should improve the air flow at worksites as an additional infection control measure by increasing the ventilation rates, reducing/eliminating recirculation, and improving air filtration.

Complex questions about recording, reporting injuries

The Missouri citation also highlights the complicated decisions facing employers with regard to OSHA’s injury recording and reporting requirements during the COVID-19 pandemic. The agency has made clear you must record and/or report all work-related coronavirus infections.

In practice, determining whether a COVID-19 infection originated from either the workplace or community transmission can be complex and require active contact tracing by an HR professional. OSHA suggested in May 2020 guidance that the work-relatedness determination may be more straightforward when (1) several cases develop among employees who work closely together, and (2) there’s no alternative explanation for how they contracted the illness. The analysis becomes more complicated, however, if a worker has significant exposure outside the workplace, such as with family members or the public.

Diligently investigate any COVID-19-positive cases among your employees to determine whether the infections were likely work-related. Per OSHA’s May 2020 guidance, if you conduct a reasonable and good-faith inquiry and can’t determine whether it’s more likely than not that the employee contracted the virus in the workplace, you aren’t required to record or report the case to the agency.

New standard in works?

Finally, as of the date of this writing, OSHA hasn’t yet issued an emergency temporary standard for COVID-19. Shortly after President Joe Biden took office, however, he issued an Executive Order requiring the agency to (1) examine whether emergency rules are needed and (2) issue them by March 15, 2021.

Stay abreast of upcoming agency announcements to ensure compliance if/when an emergency temporary standard is issued.

Bottom line for employers

The citation serves as a reminder for you to continue enforcing social distancing and mask usage policies, even as employees tire of following the restrictions after a year of facing pandemic-related prevention measures. Further, consider whether other preventative measures should be implemented, such as installing physical barriers and improving ventilation systems.

Katherine M. Ricks is an attorney with Armstrong Teasdale LLP in St. Louis, Missouri. You can reach her at [email protected].

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