COVID-Related Updates
OSHA Issues Over $3.4M in Coronavirus Related Penalties
On December 11, 2020, the Occupational Health and Safety Administration (“OSHA”) announced that it has now issued citations resulting in over $3.4 million in penalties to employers for COVID-19 related violations. These penalties arose from 255 inspections that occurred after the pandemic began. The most frequent violations include failures to train on the proper use of a respirator and other personal protective equipment; to report an injury, illness or fatality; to record an injury or illness on OSHA recordkeeping forms; and to comply with the General Duty Clause of the Occupational Safety and Health Act (which requires employers to provide a safe and healthful workplace).
OSHA’s findings emphasize the need for employers to recognize that work-related COVID-19 illnesses should be reported and recorded just like other OSHA reportable illnesses. These findings further demonstrate how important it is for employers to take the appropriate steps to prevent COVID-19 from entering the workplace and, if it does enter the workplace, to prevent its spread. Employers should make an individualized assessment of their particular workplace for COVID-19 related risks, such as what common surfaces are frequently touched, how close do employees stand or sit during the workday, is paid time off allowed if someone suspects they have COVID-19, etc. Once the assessment is complete, employers should consult the guidelines from the Centers for Disease Control (“CDC”), OSHA, and any relevant state agencies; the CDC and many states have very specific guidance for certain categories of businesses. Ideally, the employer’s policy is largely based on these guidelines, as modified for a particular workplace. Adopting, communicating and policing a written policy that follows government guidelines will help employers not only prevent and control the spread of COVID-19 but also avoid committing OSHA violations.
CDC Modifies Prior Recommendations
Contact Tracing
Once an employee advises they have tested positive for COVID-19 and have left the workplace, the employer will need to follow up with that employee to perform contact tracing, which involves identifying all employees with whom this employee had close contact. Previously, the CDC defined a “close contact” as anyone who was within 6 feet of an infected person for 15 minutes or more. The CDC recently modified the definition so that a close contact is now defined as someone who was within 6 feet of an infected person “for a cumulative total of 15 minutes or more over a 24-hour period” in the 2 days before the infected person displayed symptoms or received a positive test result. Employers need to modify their contact tracing questions to ensure they capture all employees who might fit within this new definition.
Return to Work
When an employer learns that its employee has tested positive for COVID-19, it will later have to determine when the employee can return to work. The CDC’s standards for when an employee may return are the same as those for an individual ending self-isolation. Previously, the CDC had recommended that individuals self-isolate for 14 days. However, the CDC recently stated that it is acceptable to end self-isolation to end after 10 days without testing as long as (1) no symptoms have been reported during daily monitoring, (2) the individual has gone 24 hours with no fever (without the use of fever-reducing medications), and (3) their other COVID-19 symptoms have improved (although loss of taste and smell may persist for weeks or months and need not delay the end of self-isolation). Please note that these revised recommendations do not apply to persons with severe COVID-19 or with severely weakened immune systems. Although these new guidelines will allow employees to return to work more quickly, employers should still analyze each employee’s return on its own facts, ensuring that any particular employee is well enough to return based on their own and, if applicable, their doctor’s statements.
This article is for informational purposes only and should not be considered legal advice. Please consult with your legal counsel regarding any specific situation, particularly given that this is a new statute without implementing regulations at this time.
Written by Christie Newkirk and Chelsea Glover from Carrington, Coleman, Sloman & Blumenthal, L.L.P.