While the Occupational Safety & Health Administration (OSHA) has the right to conduct inspections of business premises, employers must know and exert their own rights.
“Just because a person has a government badge, that doesn’t mean they get to do whatever they want,” says Edwin Foulke, Jr., former OSHA head who is now a partner in the Atlanta office of Fisher & Phillips.
During an opening conference with inspectors, Foulke suggests employers set out guidelines like these:
• At least one management person needs to be present when OSHA inspectors visit the worksite.
• One other management level person must be present when OSHA inspectors interview any supervisor or manager.
• The employer must be allowed to bring in their own industrial hygienist, as well as be present if OSHA does any kind of monitoring of air or noise.
During their inspections, OSHA representatives will look for the following evidence of violations:
1. There was a hazardous condition.
2. The hazard was recognized.
3. The hazard was causing or likely to cause death or serious physical harm.
4. There was a feasible method to correct the hazard.
Businesses should treat OSHA inspectors with respect while not offering more data than the law requires.
“Some employers think that if they tell OSHA everything they know and they give every document they have, that somehow that’s going to make things better,” Foulke says. “It never does.”
Work-related illness
If an employee comes down with COVID-19 and misses work time or goes to the hospital, is the illness recordable as work related? The answer is often less than clear.
“Up until now, OSHA has not been pushing too hard on employers who claim COVID-19 infections occurred outside the workplace,” Witte says.
Employers have been operating under fairly liberal standards, thanks to OSHA guidance issued in the spring of 2020 that allowed COVID-19 illnesses to be categorized as not work related if an “alternative explanation” could account for the infections.
Unfortunately, the term “alternative explanation” is vague, and OSHA does not provide examples.
“The guidance is being interpreted, by some, as indicating that if the employer can point to some exposure away from the workplace, then the case can be deemed not work-related,” Principe says.
Others are even taking the position that because COVID-19 is being spread everywhere, an infection is not work-related unless the employee has continually commuted in their own car, stayed in their own house and not gone to a grocery store or interacted with the public in any way.
That kind of liberal interpretation, though, skirts the edge of justice.
“I think you need more concrete evidence that the employee was exposed to an infected person away from work,” Principe says. “Perhaps their spouse, children or people they socialized with have COVID-19, or perhaps they attended a super-spreader event.”
Faulty categorizations can be costly.
“OSHA issues citations to employers who fail to properly record or report cases,” Principe says. “The agency is often tipped off by whistleblowers, or they get word of infections through hospitals or public health departments.”
Penalties for serious violations start at $13,653, although the amount is sometimes reduced in the event of a good faith history. Citations for willful or repeated issues start at $136,532.
Certainly, there is no need to record cases that are clearly not work-related. While an employer may do so out of fear of a citation, being too inclusive can backfire.
“Over-reporting can spark an OSHA inspection when the entries from an employer’s logs are entered on their 300A Summaries,” Foulke says. “Those are available for review not only to OSHA but also to plaintiffs’ lawyers and community activists like Common Cause. Skewed numbers can impact a business’s ability to get future work from clients.”
So how about those cases that fall into a gray area?
“My advice to employers would be that, in the case of doubt, record or report the event,” Principe says. “You can always explain the facts, saying that you don’t believe it is work-related for the following reasons, but that you are including the case out of an abundance of caution. This will protect you from a citation.”
Many OSHA observers believe the Biden administration will tighten criteria, determining that more infections occurred in the business environment. There may be a return to earlier CDC (Centers for Disease Control & Prevention) guidance that mandated an illness be designated work related if the employee was within six feet of another COVID-19-infected worker for a total of at least 15 minutes.
“The agency may start tracking infections down to employer facilities if they can do so and support the change by claiming they are trying to halt the spread of COVID-19,” Principe says.
Finding help
While the prospect of an OSHA inspection and citations can disturb any business owner, the agency can also be helpful.
“Many businesses believe that every interaction with OSHA is negative,” Norton says. “They don’t realize that OSHA also provides consultative services at both the federal and state level.”
At the employer’s request, Norton says OSHA will inspect a workplace for problem areas. While there is no charge for the service, the employer has to agree to fix whatever OSHA finds.
That proactive approach can prevent costly citations down the road.
“It’s very important to take the right steps to reduce the risk of infection in the workplace,” Principe says. “This will keep employees from getting sick and the employer out of trouble. I encourage businesses to track the OSHA and CDC websites on a regular basis. Know what the recommendations are. Then, if OSHA shows up at the door, everything will be in order.”
Phillip M. Perry is an award-winning journalist who is published in the fields of business management, workplace psychology and employment law.