The Michigan Occupational Safety and Health Administration (MIOSHA) has issued citations to 19 companies for “serious” COVID-19-related safety violations and levied a total of $51,400 in fines against the offenders. Twelve of the companies are related to the construction industry, and their total fines were $29,900.
MIOSHA cited the companies under the “general duty” clause, which, like federal OSHA, tasks all employers with providing a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm to employees.
The citations that MIOSHA issued included:
- Failure to maintain social distancing when possible.
- Failure to require face coverings when social distancing cannot be maintained.
- Not having a COVID-19 preparedness and response plan.
- Failure to designate a COVID-19 workplace supervisor.
- Not training employees on COVID-19.
- Failure to maintain/retain records of daily health screenings.
States like Michigan, said attorney Phillip Russell with Ogletree, Deakins, Nash, Smoak, & Stewart in Tampa, Florida, are handing out citations because they might believe federal OSHA has not been as aggressive as they should be in acting on violations and in developing a standard.
Other issues facing officials as they try to determine if a citation is warranted, Russell said, is that citations under the general duty clause also rely on CDC guidance. In the case of a COVID-19 infection, the issuing agency must also be able to prove that the employee was exposed at work.
The ultimate decisionmakers as to whether state agencies or federal OSHA “got it right,” he said will be the commissions or boards that review contested citations.
And while it is true that OSHA has issued relatively few citations related to COVID-19 thus far, Russell has a reminder: The agency has six months from the first exposure to a hazard to issue a citation, so some employers are not out of the woods yet just because they haven’t heard from OSHA about a violation or inspection performed earlier this year.
His best advice to employers?
Employers might not be able to do everything that the CDC recommends, he said, but they should at least pick some recommendations — such as social distancing, facial covering mandates, staggering schedules and providing handwashing stations — and follow them.
“The employers that are doing nothing and essentially thumbing their noses at the CDC and health agencies are the ones that will get in the most trouble,” he said.
“A cavalier attitude toward this, even if you don’t believe the threat is as high as the government says it is, could get you in regulatory hot water.”