Minimizing Employer Liability in the Face of OSHA-Related Claims

Employers’ obligation to provide safe workplaces for employees is hardly new.  The current COVID-19 pandemic, however, has forced health and safety at work to be top-of-mind across U.S. industries in ways not previously contemplated.  Over the past several weeks, the Occupational Safety and Health Administration (OSHA) has issued important guidance regarding COVID-19, focusing specifically on what employers can and should do to ensure their workplaces are safe.  Not only is compliance with OSHA’s guidelines important from the standpoint of ensuring worker safety, but failing to do so also can lead to legal risk and liability, as evidenced by a recent OSHA investigation involving Amazon, litigation filed this week, and an April 8 OSHA press release explaining how workers can file OSHA whistleblower claims.

Currently, OSHA is investigating an Amazon.com Inc. warehouse in Pennsylvania following complaints from workers about the facility’s COVID-19 prevention efforts.  Separately, Amazon workers around the country have staged walkouts and protests in response to concerns about unsafe working conditions, including allegations of failing to adhere to social distancing guidelines and a lack of access to protective equipment.  While it remains to be seen how this particular investigation will resolve, employers found liable for OSHA violations can be assessed penalty fees. The penalty amount depends on the nature and severity of the violation, ranging from several hundred to hundreds of thousands of dollars, including a failure to abate penalty which accumulates for up to 30 days.

Separately, employers may be subject to private lawsuits by employees who claim they were retaliated against for complaining (either formally or informally, depending on the statute) about unsafe work environments.  This week, for example, a former employee filed a complaint for wrongful termination against his former employer in state court.  The plaintiff claims his employment was terminated in retaliation for creating a Facebook group where he complained about the company’s lack of safety measures in light of COVID-19, and for similar complaints made directly to a manager.  Whether the claims have merit remains to be seen, but the suit itself is a good reminder to employers of potential claims that may stem from even a perceived failure to comply with health and safety standards.

Retaliation claims are also top of mind for OSHA, which issued a news release on April 8 explaining to workers how to file an OSHA whistleblower complaint, and emphasizing that retaliation against workers who report unsafe work conditions related to COVID-19 is prohibited.

So, what should employers be doing now?  While appropriate measures may depend on the employer’s specific workplace, OSHA has a number of recommendations, issued in March 2020, to guide employers on steps they should take to prepare their workplaces for COVID-19.  The guidance includes creating a response plan, strategy, or policy that assesses occupational, non-occupational, and worker risk factors, and plans to address and mitigate those risks.

OSHA’s guidance includes recommendations ranging from employer-controlled environmental mitigation to more employee-centric personal protection.  Depending on the workplace, OSHA recommends:

  • Installing high-efficiency air filters, increasing ventilation rates, and/or installing physical barriers, such as clear plastic sneeze guards or installing a drive-through window;
  • Replacing face-to-face meetings with virtual ones, implementing telework, alternate days or shifts to reduce the number of workers at a facility at any given time, and discontinuing non-essential travel;
  • Providing resources (e.g., tissues, hand soap and sanitizer, no-touch trash cans) that promote personal hygiene and requiring regular hand washing or use of alcohol-based sanitizer; and
  • The use of personal protective equipment (including gloves, face shields, face masks, and respiratory protection), proper hygiene, social distancing, staggering work shifts, and downsizing operations.

OSHA also encourages employers to follow CDC guidelines as well as their own state and local laws, which may mandate additional health and safety protocols and being updated regularly.  For example, the CDC currently recommends that individuals wear fabric face coverings in public where social distancing of six feet or more is difficult to maintain.  The CDC also emphasizes that even with face coverings, it is important to maintain social distancing to the extent possible.  Several cities and counties also have begun to mandate the use of a face covering when in public, and at least the city of Los Angeles now requires non-medical essential employers to provide face masks to essential employees for the work day.  Failure to comply with these local mandates also can expose employers to liability.

We are continuing to monitor developments related to workplace safety.  Stay tuned for updates.