This article was provided by Philip J. Siegel with Hendrick Phillips Salzman & Siegel.

As of October 1, 2020, OSHA has cited 62 employers for COVID-19 related violations totaling $913,133.00 in penalties.

Specifically, many of the citations and penalties came as a result of employers failing to:

• implement a written respiratory protection program;
• provide and train employees on proper personal protection equipment (PPE);
• properly report and record an employee illness and;
• comply with the General Duty Clause of the Occupational Safety and Health Act of 1970 (failure to keep “a place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm”).

Although the majority of the citations were to healthcare facilities, nursing care facilities, and food processing facilities, construction employers must remain diligent in adhering to OSHA COVID-19 guidance for construction work, which is available on the OSHA website here. Specifically, all construction employers should assess the hazards to which workers may be exposed to COVID-19, evaluate the risk of exposure, and select and implement and ensure workers use controls to prevent exposure to COVID-19. Special care must be taken for indoor construction activities where any employee, contractor, owner, or other occupant has a known COVID-19 exposure or is exhibiting COVID-19 symptoms. In those instances, the employer’s failure to take action and implement engineering controls (such as erecting physical barriers separating workers) and administrative controls (such as asking COVID-19 screening questions before worker entry) could very well result in OSHA citations and penalties.

For example, OSHA cited a food processing facility in Colorado and assessed a total of $15,615.00 in penalties for not developing and implementing timely and effective measures to mitigate exposure to COVID-19 hazards. In citing the food processing facility following a COVID-19 outbreak among its workers, OSHA listed the following recognized and feasible means of abatement of COVID-19 hazards:

1. establish, implement, and enforce a social distancing program on the job site that allow for at least a six-foot distance between workers where feasible;
2. implement protective measures such as barriers between workers, face coverings, and communicate the purpose and correct usage of such measures; and
3. the use of symptom screening prior to allowing workers to enter the job site.

For construction employers, it will be important to recognize COVID-19 hazards, especially for indoor construction activities, and implement mitigation measures in order to prevent potential OSHA citations and fines. For any employer or job specific questions, please do not hesitate to call or email attorneys Philip Siegel and Ben Lowenthal by clicking here.