With many employees still reporting for work during the COVID-19 pandemic, employers may have to adopt new measures to comply with regulations requiring safe workplaces.
Employers have an obligation to protect workers from “recognized hazards that are causing or are likely to cause death or serious physical harm,” the federal Occupational Safety and Health Administration states in a 35-page publication offering COVID-19 guidance in the workplace. Employers should use the guide to identify the risk their workers face and to determine appropriate actions to protect them, the publication states.
Wyoming OSHA has received a blitz of questions about the new challenge, officials with the Department of Workforce Services said. Wyoming is one of 29 states that enforce federal and state standards, but there are none that are specific to COVID-19 protection.
Consequently, the “general duty clause,” which is quoted in part above, applies to the pandemic, Wyoming OSHA manager Karen Godman told WyoFile. When employers face a hazard in a workplace, they navigate through a hierarchy of methods to control that hazard, Godman said.
Best action is to eliminate the hazard, she said. Several other potential safety actions are lower on the hierarchy, all seeking to minimize threats.
What many people might believe should be the first recourse is actually the last. “The very last thing you want to do for a hazard is use personal protective equipment,” Godman said.
The obligation to protect workers has implications that extend beyond the bureaucratic sphere and into the legal arena. Employers “absolutely” have a duty to protect workers during the COVID-19 pandemic, an attorney who has 25 years of experience representing workers told WyoFile.
“No employer should make a worker choose between feeding his family and … being hurt,” said Mel C. Orchard III, an attorney with The Spence Law Firm in Jackson. If employers don’t take reasonable steps to ensure their workers are protected, he said, “It can be deemed negligent. They can be and should be held accountable.”
Hierarchy of controls
When facing a hazard in a workplace, employers should act according to the “hierarchy of controls” to address or eliminate the threat, OSHA’s Godman said. The best action is elimination.
She gave an example of a hazardous substance that might be used in an industry. If it can be eliminated from the workplace, the issue is addressed. In the COVID-19 world, if a worker can accomplish her or his job from home without face-to-face interaction with the potentially infected public or other employees, that would also eliminate the workplace hazard and qualify as a solution.
If an employer can’t eliminate a threat, the next best alternative is substitution. In the chemical example, Godman said, a less toxic substance could be substituted for a more hazardous one.
Substitution might be a difficult mitigation strategy during the pandemic, she said. She could not immediately think of a good example, she wrote in an email.
Employers also can use engineering and administrative controls to keep a virus from spreading during an outbreak. The former might involve improving air flow in a grocery store, for example. The latter could include separating workers’ hours and schedules to provide more physical distance between them.
Most important is that an employer understands the new threat and addresses it, Godman said.
During an inspection “We’re going to try to make sure an employer has evaluated [the situation]” she said. “We say ‘hey employer, you do have a responsibility to furnish a safe workplace. Have you done that?’”
After an employer responds, OSHA will follow up, she said, including interviewing employees.
Because standards don’t exist for the pandemic, “we’re not going to say ‘you have to do this,’” Godman said. Instead, Wyoming OSHA consultants and inspectors will refer employers to guidelines and best practices.
Recently, social-distancing of six feet was a guideline standard. Now facemasks are also recognized as an additional tool to slow or stop the spread of COVID-19.
“This is changing so fast the things that were recommended last week, some of those things have changed,” she said.
Wyoming OSHA only makes compliance inspections when it has a reason, such as a complaint, to do so, Godman wrote in an email. During the pandemic, it has probably received more consultation calls than requests for inspections, she said.
“Often people may call to gather information and understand their circumstances and how that applies to OSHA regulations, but may not file a complaint,” she wrote. To be proactive, the agency provides guidelines and tips in Spanish and English on its web page.
Lawyers in the wings
Despite pages of guidelines and standards, all the regulations are “only as good as enforcement,” attorney Orchard said. Even as the Trump administration rolls back regulations across a spectrum of industries and agencies, inspectors as a whole “don’t work hard enough to enforce regulations that are there,” he said.
Wyoming is in a tough spot with its dwindling revenue forecasts, Orchard said. “Is there a real impetus, a real motivation for the government to put dwindling resources into policing?” he asked.
OSHA inspectors and counselors in Wyoming “want to do their jobs,” Orchard said, “but are so overwhelmed.”
Wyoming OSHA has four consultants and a supervisor plus nine compliance officers or inspectors and a supervisor, Godman told Wyofile. “We have a lot going on,” she said. “We have a lot of complaints coming in to our enforcement side.
She agreed that enforcement can be a challenge. “I always want more inspectors,” she said.
But the public shouldn’t think OSHA is letting employers off the hook, said Jason Wolfe, the agency’s administrator of workforce standards. “The answer to that is ‘no,’” he said when asked whether the agency was letting businesses skirt protective standards.
In addition to the enforcement challenge, regulations are only so strong, Orchard said. The general duty standard, for example only addresses “death or serious physical harm.” What about lesser hazards, he asked. Is there an obligation for businesses to look for dangers?
The legal system may fill that gap.
“That’s where the common law — the cases in Wyoming — give us guidance,” Orchard said. “The requirement for employers to provide a safe place to work is more expansive than OSHA requirements.”
If employers don’t take reasonable steps to protect workers, that can be deemed negligent, Orchard said. “They can be and should be held accountable.”
There are changing standards during this pandemic as experts learn more about COVID-19. But employers can’t plead ignorance, he said.
“You can’t put your head in the sand and say I [didn’t] know,” he said. “That doesn’t work.”
Workers can complain
Workers fearful of a dangerous job environment can complain to Wyoming OSHA, Godman said.
A worker who files a safety complaint can do so without the employer knowing who spoke out, Godman said. Responding to a complaint, the agency questions the employer, asking about policies and procedures in the workplace, she said.
If a worker doesn’t show up for a shift because of fear over safety and is threatened with firing, he or she can also file a complaint, Godman said. Wyoming and federal laws are designed to protect employees who file safety complaints, Godman said.
“They cannot retaliate against an employee that brings us a safety concern,” she said of businesses. Wyoming’s whistleblower protection “applies to all industries,” she said.
A business owner who retaliates against an employee who reports a worry, or against one he or she believes reported a concern, can face investigation for discrimination, Godman said. That could be in addition to any safety probe.
OSHA has the authority to levy penalties against businesses that have failed to protect workers, failed to document their safety programs and failed to report serious injuries or deaths. The rules don’t apply to workplaces like Francis E. Warren Air Force Base, in Cheyenne, which is covered by federal, not state regulations.
Penalties may not be enough to correct unsafe conditions at all workplaces, Orchard said. “It doesn’t have much teeth,” he said of the agency. “Where’s the incentive?” he asked.
Employers have responsibilities beyond providing a safe workplace, including reporting to OSHA any work injury that results in hospitalization or death. Being told to stay home and recover from COVID-19, even a confirmed case of the coronavirus, does not qualify as a hospitalization, Godman said.
Wyoming’s State Fraternal Order of Police supports a nationwide effort to have states presume that any law enforcement officer who contracts COVID-19 was infected while on duty, according to a post on the organization’s Facebook page. The Wyoming group is seeking that presumption in Wyoming for law enforcement and other first responders, the post said.
Businesses also should keep logs of safety lectures, classes and instruction so they can easily show an inspector that they have briefed workers on workplace hazards and how to mitigate them.
Because of the pandemic, many jobs that otherwise would not put workers in jeopardy are now more dangerous. Many employees find themselves in what federal OSHA classifies as the medium-risk category. Those are jobs that require frequent and/or close contact with people who may be infected.
“In areas where there is ongoing community transmission, workers in this category may have contact with the general public,” the federal definition reads. It gives examples of such workplaces, including schools, high-population-density work environments and some high-volume retail settings.
Among other recommendations, guidelines promote social distancing, plexiglass sneeze guards, face masks, alcohol-based hand rubs and floor tape to mark six-foot separation spacing.