Statistics Suggest OSHA Has Been Lax in Enforcing Workplace COVID-19 Safety

As COVID-19 cases surge, going to work has become a risky proposition, especially for employees of labs, hospitals and other health care facilities. The Occupational Safety and Health Administration (OSHA) is the federal agency charged with enforcing workplace safety rules and holding employers accountable for taking measures to protect workers from exposure to COVID-19 infection risks. Many have questioned whether OSHA has been doing enough to meet this mandate. In response to the criticism, the agency released a statistical report documenting its COVID-19 enforcement efforts starting with the beginning of the pandemic and running through Dec, 31, 2020. While designed to reassure stakeholders that the rules are (or at least were) being vigorously enforced, the report actually suggests otherwise. OSHA Liability for COVID-19 Violations Nobody disputes that under OSHA, labs 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. But then again, they also leave out other hazards. Notable omissions include workplace violence, musculoskeletal and ergonomic injuries, cold and heat stress, to name just a few. But in spite of all this, 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 Act or regulations 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,” especially in COVID-19 testing labs and other healthcare settings. In addition, inspectors looking into coronavirus compliance can also cite employers for violations of other OSHA rules that are expressly spelled out, such as requirements pertaining to personal protective equipment (PPE), respiratory protection and safety training. How Big Are OSHA Penalties? OSHA penalties vary in size, depending on how the inspector that hands them out characterize the violation. The agency indexes penalties every year. Here were the penalty amounts during the pandemic year of 2020 covered in the OSHA report: 2020 OSHA Penalty Amounts

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
$13,494 per violation	$9,639 per violation	$134,494 per violation
$134,494 per violation	NA	$13,494 per day up to maximum of 30 days
Posting Requirements	$0 per violation	$13,494 per violation

2020 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. You don’t need us to do the math to determine how much of a priority COVID-19 was for inspection over the 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. The word “proposed” denotes that employers cited for OSHA violations have the right to appeal the proposed penalty amount. In other words, cited employers who appealed might have received a smaller penalty or even no penalty at all. 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 individual 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 might well have been 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. Takeaway 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. Of course, the report covers enforcement activity during the last administration. Now that OSHA is under new management, COVID-19 inspection pressure is likely to intensify in 2021.