OSHA Issues New COVID-19 Guidance On January 21, the day after being sworn into office, President Biden issued an Executive Order on Protecting Worker Health and Safety. The Executive Order directed the Secretary of Labor to issue, within two weeks of the date of the Order, revised guidance to employers on workplace safety during the COVID-19 pandemic. Less than 10 days later, OSHA released updated guidance for mitigating and preventing the spread of COVID-19 in the workplace.
The guidance suggests that the most effective way to mitigate the spread of COVID-19 in the workplace is to implement a COVID-19 prevention program. It includes suggestions for an effective COVID-19 prevention program, including but not limited to, the following elements:
■ Assignment of a workplace coordinator responsible for COVID-19 issues.
■ Education and training workers on COVID-19 policies and procedures using accessible formats and in a language they understand.
■ Providing face coverings to employees at no cost.
■ Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.
■ Consider protection for workers at higher risk for severe illness through supportive policies and practices.
■ Performing enhanced cleaning and disinfection after workers with suspected or confirmed COVID-19 have been in the facility (this includes closing areas, and cleaning and disinfecting all immediate work areas and equipment).
■ Employers must implement protection from retaliation and set up an anonymous process for workers to voice concerns about COVID-19 related hazards.
■ Not distinguishing between workers who are vaccinated and those who are not.
■ Minimizing the negative impact of quarantine and isolation on workers (allow workers to use paid sick leave and the Families First Coronavirus Response Act paid leave).
■ Implementing quarantine and isolation rules consistent with CDC guidance.
OSHA’s updated guidance also includes links to industry-specific guidance. The construction industry guidance suggests various engineering and administrative controls, as well as safe work practices, for the workplace depending on the exposure risk level associated with construction work tasks. Notably, OSHA does suggest requiring construction workers to wear cloth face coverings in construction.
Importantly, the guidance does make it expressly clear that it is not a standard or regulation and it creates no new legal obligations for employers. The guidance is intended to provide recommendations, as well as descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, informational in content and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.
OSHA’S Penalty Amounts Increase for 2021 For 2021, penalties for an other-than-serious violation, a serious violation and a failure-to-abate violation increased to $13,653, which represents a $159 increase over these same penalties in 2020. Willful and repeat
violations now have a maximum penalty amount of $136,532 per violation, which represents an increase of $1,626 over last year’s maximum penalty amount for willful or repeat violations.
In light of this increase in OSHA penalty amounts and the fact that the Biden administration promises increased enforcement efforts, it is a good time to revisit your company safety program to make sure you are taking those steps necessary to defeat a citation based on the unforeseeable employee misconduct defense. To establish the affirmative defense of unforeseeable employee misconduct, an employer must show that it:
1. Established work rules designed to prevent the violative conditions from occurring,
2. Adequately communicated those rules to its employees,
3. Took steps to discover violations of those rules, and
4. Effectively enforced the rules when violations were discovered.
While most roofing contractors have work rules, provide training, inspect their jobsites and discipline employees who violate safety rules, it is absolutely imperative that documents are maintained that provide evidence of the same and that the company’s safety
program, especially its disciplinary component, is effective such that violations are truly unforeseeable. Even verbal reprimands should be documented. All documents which would support the affirmative defense of unforeseeable employee misconduct should be well organized and stored in a safe place for easy access in the event the company is cited for an OSHA violation.
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