Lack of COVID-19 Action by OSHA Inspectors Revealed; AFL-CIO Files Lawsuit Demanding OSHA Keep Workers Safe from Coronavirus
Coronavirus lawsuits are being filed in Indiana, Illinois, and the rest of the country by three different types of COVID-19 injury victims: (1) commercial economic injury victims who are seeking coverage for their business interruption losses; (2) bodily injury victims who have been exposed and infected with Coronavirus due to a breach of care owed them by a third party; and (3) victims who have fallen ill with COVID-19 because of an employer’s breach of duty to workers.
Of the three groups in this unprecedented circumstance of a national pandemic quarantine, workers and employees arguably have the clearest legal protections already in place under state and federal law. After all, as we discussed earlier, the federal government has clarified that no new federal regulations are required for the protection of American Workers on the job from the Coronavirus.
Existing CFR (Code of Federal Regulation) provisions are deemed sufficient for employers to follow in keeping their workers safe from COVID-19 exposure. For details, read our discussion in ““Coronavirus on the Job: Legal Standards for Employers to Protect Employees from COVID-19.”
OSHA: Employers’ Duties of Care to Protect Workers from COVID-19
The Occupational Safety and Health Administration (OSHA) is clear that employers have a duty to their employees to provide them with a workplace “… free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. §654 (OSHA’s “General Duty Clause”).
How this applies to the risk of exposure to the Coronavirus on the job is not delineated by OSHA. Instead, OSHA refers employers to the Centers for Disease Control and Prevention (CDC), where guidelines for workplace safety include things like taking temperatures to determine if someone has a fever or not; providing personal protective equipment (PPE), like face masks and gloves; instituting heightened cleaning and sanitizing practices, and more. See, e.g., “Employers’ Duty to Protect Workers during Coronavirus Outbreak.”
Workers are being asked to rely upon employers to meet the existing duties of care defined by OSHA with references to CDC guidance as it applies to keeping people safe from the Coronavirus.
Exposed: OSHA Not Enforcing Safety Regulations Related to COVID-19
Coupled with OSHA’s official regulatory guidance to employers and company management comes its obligation to make sure that these safety regulations are being followed. OSHA has a duty to inspect workplaces and to enforce compliance with federal law by instituting enforcement actions against those who have failed to comply. See, e.g., “Top 10 OSHA Workplace Safety Violations in 2019: Employers Violating Safety Laws.”
It has become apparent that OSHA has not been inspecting and enforcing federal safety regulations regarding Coronavirus exposures on the job.
On May 18, 2020, Politico shared findings detailed in a report by advocacy group Accountability.US which exposes the failure of OSHA to police employers across the country to make sure companies were keeping their workers safe from COVID-19. According to the agency’s own inspection records, 93% of the Coronavirus Complaints filed with OSHA had no corresponding inspection. Only seven percent (7%) had resulted in instituting any federal inspection.
Read, “OSHA enforcement dwindles as workers fall ill,” written by Rebecca Rainey and published by Politico on May 18, 2020, and the corresponding summary by Accountability.US as well as its full report, shared online as a pdf here.
- Since the beginning of 2020, records show that only 3.7% of all OSHA-reported inspections have been associated with COVID-19 while OSHA citations have plummeted by over 17,000.
- OSHA’s inspection rate was higher before coronavirus was declared a national emergency.
- OSHA’s investigations are decreasing, but worker complaints continue rising. Workers are concerned regarding their exposure to COVID-19 and “a lack of safeguards at their places of employment.”
Changing OSHA COVID-19 Enforcement Notices: April 2020 and May 2020
What was going on at OSHA? On April 10, OSHA had issued a notice stating it would be exercising “enforcement discretion” regarding COVID-19, explaining that for many employers, there may be a “difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.”
Accordingly, “[i]n light of those difficulties, OSHA is exercising its enforcement discretion in order to provide certainty to the regulated community.”
Shortly after the above-referenced report was released by Accountability.US, the agency changed its inspection policy regarding Coronavirus exposure on the job. On May 19, 2020, a new notice was released by OSHA, changing enforcement guidance and giving much more information regarding the duties of employers to keep workers safe from Coronavirus exposure.
The May 2020 Notice gives much more detail into the duty of care that employers in Indiana, Illinois, and our sister states must meet to keep workers safe from COVID-19 exposure on the job.
From the May 19th Notice: come the following factors that are to be considered:
- The reasonableness of the employer’s investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.
- The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.
- The evidence that a COVID-19 illness was contracted at work. CSHOs should take into account all reasonably available evidence, in the manner described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:
- COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
- CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.
- If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness. In all events, it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.
AFL-CIO Sues OSHA to Force Protection of Workers From COVID-19
Meanwhile, OSHA continues with its stance that the current federal regulations are sufficient to meet the current COVID-19 crisis. The May 2020 Notice does not go so far as to create a new federal regulation or safety standard that employers are legally required to meet.
This, too, may change. The day before OSHA issued its more detailed policy regarding inspection for COVID-19 safety compliance, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed a petition in federal court demanding that OSHA take steps including drafting a new federal regulation specific to the Coronavirus Epidemic. Read the AFL-CIO Petition here.
Worker’s Injury Claims for COVID-19 Exposure at Work in Illinois and Indiana
Failures of companies, managers, and site supervisors to keep workers safe from the Coronavirus at work can mean the employer will face legal claims based upon the employee’s resulting injuries after exposure to the virus.
The expanding May 2020 guidance given by OSHA to its staff regarding enforcement of existing federal safety standards to protect workers from COVID-19 provides guidance not only to inspectors but also to workers and their families as to what should be provided on the job to keep them safe from the Coronavirus.
Today, workers may be able to file a legal claim against their employer for injuries sustained by exposure to the Coronavirus. Each state’s law must be individually considered here insofar as state structures for workers’ compensation and injury claims.
The employee will need to prove he (or she) was exposed to the infectious Coronavirus while on the job. Thereafter, he (or she) will also have to provide evidence that the employer failed in its duty of care to provide a workplace “… free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. §654 (OSHA’s “General Duty Clause”).
Reference to the language contained in OSHA’s May 2020 Notice may be used to support the victim’s claims that there was a breach in the duty of care owed by the employer to him (or her).
For more on Coronavirus-related Lawsuits, read:
- Coronavirus on the Job: Proving Employee Exposure Claims Against Employer for COVID-19 Injury;
- Coronavirus Lawsuits and COVID19 Legal Claims in Indiana and Illinois: Wrongful Death or Serious Injury;
- Deadlines for Injury Victims to File Lawsuits: Statutes of Limitations.
For more on the danger for serious injury or death on the job for workers in Indiana and Illinois, read:
- Rising Trend in Workers Killed on the Job: BLS Reports Highest Number of Worker Deaths Since 2008;
- More Time for Injured Workers to Seek Justice after Exposure to Toxins on the Job: New Illinois Statute;
- Dirty Dozen Report: No Surprise the Most Dangerous Workplaces are Extremely Profitable Companies.
The courts of Indiana and Illinois have been established to provide injured victims a place where wrongs can be righted and justice can be found. Employers have a duty to keep their workers safe from COVID-19. Please be careful out there!
