COVID-19 AND THE CONSTRUCTION INDUSTRY

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Can OSHA impose COVID-19 Guidelines?

With COVID-19 cases continuing to rise throughout the United States, we have grown accustomed to changes in rules, shifts in policy, closings, re-openings, re-closings, and a host of other obstacles to operating in compliance. Of these changes, the CDC’s interim and revised guidance regarding face masks in the workplace may be the most notable.

Contractors should continue to comply with the states’ and federal government’s ever-changing “guidelines,” but the question is, if they must. With this, we need to understand if OSHA can impose citations and fines in the event of employers’ missteps or outright non-compliance.

A new rule adopted by DOSH, Washington State’s equivalent to OSHA, has expanded the ability for the state to enforce COVID-19 restrictions. Under this rule, failure to comply with safe reopening plans can be considered a violation of Washington’s safety code. Virginia’s OSHA has also enacted a similar rule to enforce compliance.

Yet, federal OSHA, which governs approximately half of U.S. states, has adopted no such emergency rule. At the federal level, OSHA has merely suggested best practices for employers (most of which follow CDC guidance). Therefore, questions remain as to: (1) whether businesses can be cited and fined for failing to comply with OSHA’s guidelines; and (2) if OSHA will actually seek to impose penalties based upon its guidelines.

In our view, conventional principles of administrative law prevent OSHA from imposing penalties based upon announcements, such as social distancing guidelines. OSHA must create real, formal regulations. However, OSHA has broad powers to achieve the same result by issuing citations to employers under its General Duty Clause and regulations predating the pandemic. From a legal perspective, there is a strong argument that OSHA cannot cite a business for failing to comply with its COVID-19 guidance because it has not undergone the formal rule-making process. However, OSHA can cite a business for allowing employees to become exposed to a hazardous illness, such as COVID-19, or, for failing to follow preexisting regulations.  While the approaches are different, the result is effectively the same.

On July 21, 2020, OSHA’s newsroom issued its first briefing regarding a coronavirus-related citation. The company was an Ohio nursing facility that reported coronavirus-related hospitalizations for seven of its employees. Yet, the facility was ultimately cited for failing to issue a written respiratory protection program and failure to provide medical evaluations to employees before allowing them to use N-95 Respirators.

OSHA has announced it will vigorously enforce all standards that apply to the coronavirus. However, it is unclear whether the administration has the capacity to do so on a broad scale. For example, in Florida, OSHA’s offices, which are responsible for overseeing approximately 2.5 million small businesses, are reporting only 300 new files since the outbreak in the U.S. In addition, a large portion of the new inspection files are related to traditional construction-related violations rather than the coronavirus. Still, more aggressive enforcement may arise in the future as OSHA’s offices return to full staffing.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.