Even after the election and swearing in of the new President, federal government response to the COVID-19 pandemic remains a politically charged issue. One area of contention involves whether OSHA has done enough to protect workers exposed to the virus. On Jan. 8, the agency issued a statistical report documenting its COVID-19 enforcement efforts starting with the beginning of the pandemic and running through Dec. 31, 2020.
Employer liability for COVID-19 violations under OSHA laws
Nobody disputes that under OSHA, law offices and other employers have a duty to protect workers from risk of COVID-19 infection. What may be less clear, is the source of that duty. Neither the Occupational Safety and Health Act (Act) nor the regulations say anything about COVID-19 or, with a few exceptions, infectious illnesses in general. Other hazards not mentioned include workplace violence, musculoskeletal and ergonomic injuries, cold and heat stress, to name just a few. And, yet, OSHA inspectors still hand out citations and fines against employers that fail to guard against these workplace hazards.
How can OSHA do this? Answer: OSHA’s authority to issue fines for failing to control hazards not specifically mentioned in the law comes from Section 5(a)(1) of the Act, aka, the “general duty clause,” which requires employers to furnish a workplace that’s “free from recognized hazards” likely to cause death or serious physical harm to a worker. And coronavirus is clearly a “recognized hazard.”
In addition, inspectors looking into coronavirus compliance can also cite employers for other kinds of OSHA violations, such as failing to comply with requirements pertaining to personal protective equipment (PPE) and respiratory protection.
OSHA penalty amounts for COVID-19 violations
OSHA penalties vary in size, depending on how the inspector that hands them out characterize the violation. And while the agency indexes penalties every year, here were the penalty amounts during the pandemic year of 2020 covered in the OSHA report:
| Type of Violation | Minimum Penalty | Maximum Penalty |
|---|---|---|
| Serious | $964 per violation | $13,494 per violation |
| Other-Than-Serious | $0 per violation | $13,494 per violation |
| Willful or Repeated | $9,639 per violation | $134,494 per violation |
| Failure to Abate (i.e., fix a cited violation) | NA | $13,494 per day up to maximum of 30 days |
| Posting Requirements | $0 per violation | $13,494 per violation |
OSHA COVID-19 enforcement by the numbers
According to the report, in 2020, OSHA carried out 300 COVID-19 inspections. To put those numbers into context, the agency performs an average of 32,000 total inspections per year. The other key number in the report is $3,930,381, the total amount in penalties that OSHA inspectors proposed against employers cited for COVID-19 violations. Keep in mind that employers cited for OSHA violations have the right to appeal the proposed penalty amount. The report also lists the types of violations for which employers were cited, including failure to:
- Comply with the general duty clause requirement to provide a workplace free from recognized hazards;
- Implement a written respiratory protection program;
- Provide a medical evaluation, respirator fit test, training on proper respirator use and PPE;
- Report a workplace injury, illness or fatality; and
- Record an injury or illness on OSHA 300 logs and other recordkeeping forms.
What the report doesn’t address is the size of the penalties handed out. And to the extent OSHA is trying to make a point about how tough it’s been in enforcing coronavirus safety rules, this omission was probably deliberate. Based on incremental reports listing fines against employers over a weekly period, we can discern that the highest proposed fine against an employer for a COVID-19 violation was a mere $26,988. The vast majority of proposed fines were at or below the $13,494 maximum for a serious violation.
One final note: The report includes only enforcement activity carried out by federal OSHA. Twenty-two states, including California, have their own state OSHA equivalent programs imposing requirements that are typically stricter than federal standards.
Conclusion
Although the fine totals sound impressive, the numbers support the contention that OSHA has been less than vigorous in its efforts to enforce COVID-19-related safety rules in the workplace. Inspections have been relatively few in number and the penalty amounts modest, particularly as compared to fines the agency hands out for fall protection, Hazcom, confined spaces, lockout, machine guarding and other common violations.