There is a concerning intersection of events playing out right now in the COVD-19 related world of employee safety. Namely, employers feeling pressure to go back to work, or even desiring to get back to work, and employees not always providing a safe place for them to perform their job in the midst of this pandemic. OSHA (the Occupational Safety and Health Act) was created, by its own motto, to “assure safe and healthful working conditions for working men and women” and has long required employers to record work-related injuries and illnesses which included confirmed cases of COVID-19. However, the realities of COVID-19 seem to be leaving OSHA either unable or unwilling to provide the very safety measures and enforcement they have sworn to uphold since the Act was created in 1970. Recently they put forth an updated set of guidelines designed to educate employers as to what events should trigger a report. While somewhat detailed, it leaves a fair amount of ambiguity as to an employer’s interpretation of what an “alternative explanation” for where an employee’s COVID-10 may have been contracted.
In addition, a recent article in the Tampa Bay Times has highlighted some severe discrepancies in the rate of reporting versus the investigations being initiated, and the consequences being levied, on employers by OSHA. The scenarios referenced ranged from prisons to plasma donation centers to hospitals, where there were strong concerns that reported infractions are not being investigated. When they were investigated, the employer was not cited or was asked to simply confirm they were acting within the guidelines. Essentially, in many instances OSHA is providing what has been referred to as “non-binding” guidelines.” This is also playing out on the national political scene with the Democrats’ and Republicans’ competing attempts at legislation. The Republicans who traditionally will back employers at all costs are pushing for immunity provisions as part of any continuing Covid-related financial aid packages.
The general duty clause of OSHA requires employers to maintain a workplace that doesn’t put their employees at risk of serious harm or death. Predictably, however, without OSHA really taking the bull by the horns here it’s giving the employers the out and they’re able to deny any responsibility. At the very least they are able to say they didn’t violate any OSHA regulations.
The safety and well-being of all employees should be of utmost importance to both employers and agencies like OSHA that provide the safeguards when that is not the case. If you or a family member feel that your COVID-19 concerns, or any other job safety concerns, are not being acknowledged or addressed please don’t hesitate to contact us. FWY is a law firm that is able to navigate the complexities that this type of matter presents and we are happy to talk to you if you think you need any assistance.