Coronavirus Update 1-26-22: OSHA doesn’t need an ETS to go after your business’s Covid-safety deficiencies

By Jon Hyman on January 26, 2022

With the Supreme Court effectively killing OSHA Covid-19 vax-or-test Emergency Temporary Standard, and OSHA now officially withdrawing it, employers might think that they are beyond the reach of OSHA for Covid safety-related issues. If you are one of those employers that thinks this way, you are very mistaken.

Consider Sanoh American, a Findley, Ohio, auto parts supplier. OSHA recently cited and fined it $26,527 for ignoring guidelines to limit Covid-19 exposure in its facility. While the company had social distancing and mask policies in place, it failed to follow or enforce them. As a result, 88 of the company’s 270 Findley employees (nearly one-third of the local workforce) tested positive for Covid-19. Five of those positive employees were hospitalized and two unfortunately died. OSHA determined that one of those deaths was work-related.

In a news release, OSHA Area Director Larry Johnson said, “Sanoh America’s failure to follow health and safety guidelines and its own company policies resulted in worker illnesses and death.” He added, “OSHA continues to enforce all standards applying to the coronavirus and holds employers accountable for failing to meet their obligations to minimize worker exposure to the coronavirus.” This is just one of many (e.g., here, here, here, here, here) similar citations in the past half-year alone.

Still, without the ETS or any other Covid-19 related standards, under what authority can OSHA act to hold anyone accountable for workplace Covid exposures, illnesses, hospitalization, and deaths? I can think of two — the General Duty Clause and OSHA’s Covid National Emphasis Program.

OSHA’s General Duty Clause requires that each employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” It’s of vital importance during a pandemic because without any specific standards on infectious disease or viral prevention, OSHA needs to fall back on the General Duty Clause for enforcement. For this reason, most employers’ COVID-related failures will be related to failures to meet their “general duty” to keep their employees safe.

Separately, OSHA has a Covid National Emphasis Program that requires that employers in certain industries at higher risk for workplace exposures maintain certain Covid-related safety measures.

Finally, and while not yet active, employers need to monitor OSHA’s efforts to enact a permanent Covid vaccination standard, which is still being considered.

The bottom line: Covid is still here. If you are actively doing things to put your employees in harm’s way from the pandemic, OSHA is watching and absolutely has the power to investigate, cite, and otherwise act, without or without a Covid standard (temporary or otherwise).

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