As the world continues to grapple with the COVID-19 pandemic, employers face new challenges to protect the workforce. Suddenly, maintaining a safe workplace requires careful consideration of infectious disease protections in addition to the existing regulatory obligations.
Most companies in the U.S. construction and mining industries received designations as essential or critical from federal and state governments at the onset of shutdowns and “stay-at-home” orders, allowing these businesses to continue operations. The companies continued to operate during a time that guidance and enforcement by the Occupational Safety & Health Administration (OSHA) and the Mine Safety & Health Administration (MSHA) were limited, as the agencies also scrambled to react, develop a response and protect their workforces.
However, with the virus continuing to spread, the pressure on OSHA and MSHA to begin enforcement continues to mount.
Agency response
Of the two sister workplace safety agencies, MSHA remains more reserved in its response. While the agency continues to encourage mine operators and independent contractors to follow Centers for Disease Control & Prevention (CDC) best practices and voluntarily report positive cases, MSHA’s COVID-19 enforcement and investigation remains limited. Its guidance for mine operators consists of a sampling of weblinks and pamphlets. In fact, if MSHA arrives at an operation, more than likely the inspector is on-site for more routine, non-coronavirus purposes.
OSHA, on the other hand, has largely paused routine inspections, but that trend is changing. OSHA opened hundreds of enforcement inspections for COVID-19 in the workplace since the pandemic began, and while the number of issued citations is still relatively low, it is important to remember OSHA has six months from the initiation of an investigation to issue citations, meaning a flood of enforcement may appear soon.
Additionally, OSHA is currently returning to more routine inspections in areas of the country where there is less concern regarding transmission, making outdoor work environments such as recycling/crushing operations prime targets.
What can employers do?
To prepare, employers should evaluate each facility or worksite and develop a comprehensive plan to protect the workforce from the continued transmission of COVID-19. While not federally required at this time, many states have implemented such obligations, and having a coronavirus plan notifies employees, visitors, customers and investigators of the facility’s expectations during the pandemic, while clearly outlining procedures to protect the site, which can include but are not limited to:
■ Performing temporary hazard assessments for personal protective equipment
■ Planning to limit large gatherings of employees by staggered or rotating shifts
■ Outlining enhanced cleaning programs, specifically addressing increased sanitation for common areas/surfaces and shared equipment or tools
■ Conducting health screening procedures for anyone coming on-site
■ Responding to positive cases in the workplace
■ Evaluating whether or not an employee’s COVID-19 positive status is reportable or recordable to OSHA and/or MSHA
Employers need to be preparing for regulatory scrutiny in the form of continued routine inspections and enforcement by OSHA and MSHA, while also developing, updating and implementing protections specific to the risks posed by the pandemic.
Nick Scala is a MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com.