Category Archives: OSHA

OSHA’s Latest COVID-19 Guidance

Contributed by guest author Matthew Horn, February 10, 2021

In response to an executive order signed by President Biden, OSHA recently issued updated COVID-19 guidance recommending that all employers adopt a formal COVID-19 prevention plan, incorporating the following activities and elements:

  • Conducting a hazard assessment relating to COVID-19 exposure;
  • Identifying control measures to limit the spread of COVID-19 (such as distancing, masks, barriers, work-from-home, staggered shifts, etc.);
  • Adopting policies that encourage sick workers to stay home and not come into work;
  • Communicating and training employees on the policies and procedures implemented (in their native languages); and
  • Implementing protections from retaliation for workers who raise COVID-19 related concerns and issues.

Also note that the updated guidance advises employers to continue to require all employees — even those who have been vaccinated — to comply with all control measures, including the wearing of masks and social distancing, stating “there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”

While OSHA rightfully acknowledges that these recommendations do not create new standards or regulations, employers should comply with them nonetheless, with the expectation that OSHA will enforce these recommendations by way of the OSHA General Duty Clause or some other, existing standard. Further, these recommendations will likely become standards within the next thirty days, given the recent executive order directing OSHA to issue any emergency COVID-19 standards by March 15, 2021. We will continue to update you on all developments as that deadline approaches.   

OSHA Revises COVID-19 Guidance….Again

Contributed by guest author Matthew Horn, May 22, 2020

Previously, OSHA issued guidance indicating that most employers only had to record or report confirmed COVID-19 cases when provided with objective evidence that an employee contracted COVID-19 at work.  In practice, this put the burden on employees to submit evidence to employers establishing that their COVID-19 cases were contracted at work.

OSHA recently issued revised guidance on this issue, which goes into effect on May 26, 2020. Under the revised guidance, OSHA puts the burden on the employer to make a “reasonable determination” as to whether a confirmed COVID-19 case was contracted at work. In order to make that determination, OSHA suggests that employers:

1) Question the employee as to how he/she believes he/she contracted COVID-19;

2) Discuss with the employee his/her out-of-work activities that may have resulted in exposure; and

3) Review the employee’s work environment for potential COVID-19 exposure.

If, after taking those steps, the only logical explanation is that the employee contracted COVID-19 at work, then the case should be recorded or reported to OSHA, as appropriate. 

Moving forward, employers should prepare a questionnaire to be filled out by employees with confirmed COVID-19 cases, inquiring as to the topics OSHA has identified in its guidance—much like an accident report. Employers can use those questionnaires to guide them in their OSHA-related decision making process, as well as if/when a workers’ compensation or civil suit is filed.

Why You Need to Pay Attention to How the Feds Are Approaching the Meat and Poultry Processing Industry

Contributed by Beverly Alfon, April 28, 2020

While most employers do not take issue with CDC and OSHA recommendations related to hand washing, sanitizing, personal protective equipment (PPE), or even employee screening – the  social distancing aspect of these guidelines often provoke the greatest resistance from manufacturing employers:  “We’re just not set up to operate that way.”

Over the last few weeks, we have all seen the headlines regarding Smithfield, JBS, and Tyson.  The meat processing plants have become alleged hot beds for COVID-19, leading to plant closures.  Last week, Smithfield workers sued the company alleging that the company “in direct contravention of CDC guidelines,” provides insufficient personal protective equipment, forces workers to work shoulder to shoulder, and schedules their working time and breaks in a manner that forces workers to be crowded into cramped hallways and restrooms. Last week, Tyson Foods also closed its Waterloo plant in the face of a significant COVID-19 outbreak among its workers and an OSHA complaint filed by Iowa lawmakers. According to a USA Today article  published a week ago, the outbreaks have caused the closure of 17 U.S. facilities, including a Smithfield pork plant in South Dakota that handles 5% of U.S pork production. 

In response, the CDC and OSHA issued joint agency guidance for Meat and Poultry Processing Workers and Employers on April 26.  The agencies identified “distinctive” factors that increase workers’ risk for exposure to COVID-19 in these workplaces:

  • Distance between workers – workers often work close to one another on processing lines. Workers may also be near one another at other times, such as when clocking in or out, during breaks, or in locker/changing rooms.
  • Duration of contact – workers often have prolonged closeness to coworkers (e.g., for 10-12 hours per shift). Continued contact with potentially infectious individuals increases the risk of SARS-CoV-2 transmission.
  • Type of contact –workers may be exposed to the infectious virus through respiratory droplets in the air – for example, when workers in the plant who have the virus cough or sneeze. It is also possible that exposure could occur from contact with contaminated surfaces or objects, such as tools, workstations, or break room tables. Shared spaces such as break rooms, locker rooms, and entrances/exits to the facility may contribute to their risk.
  • A common practice at some workplaces of sharing transportation such as ride-share vans or shuttle vehicles, car-pools, and public transportation
  • Frequent contact with fellow workers in community settings in areas where there is ongoing community transmission.

However, these factors do not appear to be so distinct to the meat and poultry processing industry. Some or many of these conditions likely exist in any number of manufacturing  operations. Notably, these factors are all focused on a lack of physical distance between workers.

The events occurring within the meat and poultry processing industry should be a cautionary tale to all manufacturing employers who recognize any of the above factors within their operations and workforce. While some of these recommendations may require herculean efforts during this time of overstretched resources, some consideration should be given to the potential costs of a COVID-19 outbreak among employees, OSHA investigation, production shutdown, and litigation aimed a enforcing these non-mandatory guidelines. 

Breaking news:  Just hours ago, President Trump indicated that he intends to use the Defense Production Act issue to order meat and poultry (and likely other types of food) processing plants to remain open as the country is starting to see food-supply disruptions from the COVID-19 outbreak. This comes on the heels of the declaration from Tyson Foods Chairman John Tyson that the U.S food supply chain “is breaking.”  President Trump has indicated that the executive order will “solve any liability problems,” so as to shield meat plants from legal liability if they are sued by employees who contract COVID-19 while on the job.  Media reports also indicate that the executive order will include provisions for additional protective gear for employees, guidance, and virus testing capacity. This is a developing matter and we will continue to monitor it. 

OSHA’s NEW Enforcement Plan re: COVID-19

Contributed by guest author Matt Horn, April 14, 2020

OSHA has released an interim enforcement plan explaining how it will prioritize and conduct COVID-related inspections. Given the high volume of COVID-related reports and complaints, OSHA intends to conduct onsite inspections for COVID-related fatalities that occur at “high risk” jobs only, such as first responders and those working in health care facilities, nursing homes, hospices, laboratories, and morgues.  For virtually all other COVID-related illnesses and reports, including those working medium risk jobs (interact with the public) and low risk jobs (no interaction with the public), OSHA intends to allow those employers to submit their investigation findings via OSHA’s self-reporting tool. 

For more OSHA updates, or to learn more about our OSHA practice, please visit


Contributed by guest author Matt Horn, March 24, 2020

Our clients continue asking us the same two questions about COVID-19 as it pertains to their obligations under OSHA. We include those questions and our answers below:

1. What does OSHA expect me to do to prevent the spread of COVID-19 to my employees?

Answer:  OSHA has provided guidance on steps employers can take to prevent the spread of COVID-19 in the workplace. This guidance appears to relate largely to employers outside of the healthcare industry. Industry associations have also put out their own guidance, including the AGC. The AGC guidance provides practical, common-sense advice, including: 1) ensure people who are sick are kept from the site; 2) provide employees with clean, accessible facilities to go to the bathroom and wash their hands (with soap); 3) keep employees spread out; 4) do not require people to meet in large groups; 5) do not maintain a common water cooler or coffee station; and 6) clean and sanitize whenever and to the extent possible.

For those employers in the healthcare industry and others heavily impacted COVID-19, OSHA has also compiled a list of Standards that apply to COVID-19. The most obvious and important Standard relates to providing employees with the PPE necessary to protect them from exposure, including gloves, face and eye protection, and respiratory protection.

2. If one of my employees gets COVID-19, do I need to record or report it to OSHA?

Answer: OSHA has indicated that it will require employers to record and report employee COVID-19 cases in certain circumstances. Three factors must be met in order for an employee case of COVID-19 to apply: 1) an employee has a confirmed case of COVID-19; 2) the case is work-related; and 3) the case involves one or more of the general recording or reporting criteria (i.e. medical treatment beyond first aid, days away from work, hospitalization, death, etc.). As to the second prong, in order for a case to be work-related, the employee has to actually be infected at work—it is not enough that he/she contracts the disease outside of work and displays symptoms at work. 

Clearly, this obligation impacts the healthcare industry the most, since its employees are most likely to contract a confirmed case of COVID-19 at work; however, it has the ability to impact all employers. For those employers in the healthcare industry, it would seem that the best way to avoid this recording or reporting obligation is to provide employees with the necessary PPE as mandated by OSHA, and for those employers outside of the healthcare industry, it would seem that the best way to avoid this obligation is to ensure that employees who have COVID-19 are not allowed to work and infect others.

NASA’s Wardrobe Malfunction provides Valuable Reminder to Employers Back on Earth

Contributed by Suzannah Overholt, April 12, 2019

Astronaut on the moon. Elements of this image furnished by NASA

The first all-female spacewalk was planned for Friday, March 29, 2019. News outlets included the event in their coverage of women’s history month and the strides women had made in male dominated industries. However, the Monday before the spacewalk NASA announced that only one female would be able to participate because NASA did not have enough properly configured spacesuits for two women. Attempting to modify an existing uniform in the time before the spacewalk would have involved some risk to the astronaut who wore it. While a spacewalk was completed, the team consisted of a male and female astronaut, not two females. 

Events in space do not ordinarily trigger reminders of one of the most basic responsibilities and liability risks for employers – providing appropriate safety gear for their employees. However, the issue confronted by NASA was a very well publicized reminder to make sure to evaluate your workforce and ensure that you are providing appropriate safety gear.  

Employers are obligated to protect their employees from workplace hazards that can cause injury. That obligation includes providing and maintaining appropriate personal protective equipment (PPE) under certain circumstances as well as providing appropriate training to employees regarding when PPE is necessary, how to don, doff, adjust and wear the PPE, the limitations of PPE, and the proper care and maintenance of the PPE.

According to the U.S. Bureau of Statistics, in 2016 women made up 51.7% of the U.S. workforce, and there is a growing number of women are in the construction and manufacturing sectors. However, concerns have been raised that required PPE is not always available for female workers in those fields. Common examples are ill-fitting work clothes, including flame resistant clothing, harnesses, eye protection, hard hats, and gloves. The Occupational Safety and Health Administration (OSHA) and National Association of Women in Construction have renewed their alliance, which includes educating construction companies on hazards of particular concern to women in the construction industry, including PPE selection, sanitation, and workplace intimidation and violence. That being said, this issue impacts all industries and sometimes in different ways. For example, the health care sector has traditionally had a higher number of women workers. However, there are more men joining the health care sector workforce and so employers must take into consideration the different PPE considerations to ensure that there are appropriate sizes available for all employees, including the men.

The risks of not providing properly fitting PPE are twofold – the risk to the employee’s safety and the risk of liability to the employer. The risks to the employee are fairly obvious – an employee may be injured to an ill-fitting safety harness, get debris in their eye due to poorly fitted eye protection, be injured if too loose of work clothing gets caught in equipment, or as occurred to NASA, the PPE could not be safely used. While for most employers these issues will not become front page news, there are still significant risks including OSHA complaints, citations and penalties, increased injuries and worker’s compensation premiums, and liability under state and federal employment discrimination laws. Employers may also risk criminal charges – the Attorney General for Maine recently filed manslaughter charges against a contractor for the death of a roofer who allegedly fell because he was not wearing fall protection gear. Notably this was not the contractor’s first violation.

Employers should minimize their risk by assessing the PPE that is offered to their employees, ensuring that the range of sizes that is available meets the needs of the workforce. They should also regularly assess their workplaces to ensure that the appropriate PPE is required and being provided.

OSHA Issues Memo on Incentive Programs and Drug Testing

Contributed by Matthew Horn, October 16, 2018


Computer with “OSHA” on the screen

On October 11, 2018, OSHA issued an additional memorandum to further clarify its position on incentive programs and drug testing. While the memorandum does not set out drastic changes to OSHA’s earlier rule and guidance, it does indicate that OSHA will take a more practical approach to incentive programs and drug testing than previously indicated.

With regard to incentive programs, it indicates that traditional incentive programs based on a lack of injuries during a particular time period will not be deemed violative of OSHA if the employer has measures in place to ensure that employees are reporting injuries regardless of the programs. With regard to drug testing, it indicates that drug testing is allowed in the following circumstances: 1) random testing; 2) drug testing unrelated to an injury; 3) testing pursuant to a state’s workers compensation laws; 4) testing pursuant to federal law, including U.S. DOT rules; and 5) testing employees whose conduct could have caused or contributed to an incident or injury.

Notably, this memorandum appears to be another step in the right direction by the current administration to implement a more business friendly OSHA

UPDATED 11/22/2017: Deadline to Electronically Submit OSHA Data

Contributed by Matthew Horn, November 21, 2017

BREAKING NEWS: In follow up to our blog from yesterday, OSHA issued a press release this morning extending the deadline to electronically report from 12/1 to 12/15. All other information in the blog remains unchanged.

On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release pushed back the compliance date four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Dec1Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here. To date, despite OSHA’s promise to review the Rule closely, it has taken no action to roll back or delay the electronic reporting requirements, so the December 1st deadline remains.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

While we were hoping OSHA would roll back or delay the Rule, it appears that is not going to happen. Accordingly, all applicable employers would be well-served submitting their data online no later than December 1st.

OSHA Charges Ahead With Electronic Report Rule

Contributed by Matthew Horn, August 2, 2017

Electronic Reporting File_2On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposed pushing the compliance date back four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

Notably, despite moving forward with the launch of its injury tracking website, OSHA has yet to address the “review” of the Rule it promised in its June 27, 2017 press release. Accordingly, employers would be well-served to wait to submit their 300A data until shortly before the December 1, 2017 deadline to see if OSHA changes course on the Rule before that deadline. Mark your calendars.

Three Needless Deaths: Recognize Confined Space Dangers on Your Job Sites

Contributed by Patrick M. Sanders, July 24, 2017

Construction Site

Supervisor using walkie-talkie at construction site

On July 14, 2017, the U.S. Department of Labor’s Occupational Safety and Health Administration cited a contractor for 10 serious violations after the deaths of three workers who succumbed to toxic gases in a manhole on January 16, 2017.

Preventable safety failures led to the deaths of Elway Gray, a 34-year-old pipe layer, who entered the manhole – a confined space – and quickly became unresponsive; Louis O’Keefe, a 49-year-old laborer, who entered the hole in an attempt to rescue Gray; and Robert Wilson, a 24-year-old equipment operator, who followed to rescue his two fallen coworkers. Two other employees and a firefighter were also exposed to the toxic gases during rescue attempts but survived.

Post-incident atmospheric testing of the confined space revealed lethal levels of carbon monoxide and hydrogen sulfide. OSHA investigators issued Douglas N. Higgins, Inc. and its related contracting company, serious citations, totaling $119,507, in penalties.

The incident-related serious violations included failure to:

  • Purge or ventilate the confined space before entry;
  • Prevent workers from exposure to an asphyxiation hazard;
  • Provide necessary rescue and emergency equipment for employees that were overcome inside a permit-required confined space;
  • Develop and implement a written hazard communication program for a worksite on which employees were exposed to dangerous chemicals and gases;
  • Use a calibrated direct-reading device to test for toxic gases, creating an asphyxiation hazard;
  • Create and document the confined space entry permit;
  • Provide training to employees in the safe performance of their assigned duties in permit-required confined spaces; and
  • Provide a guardra­­­il around the manhole opening, exposing employees to a fall hazard.

Full citations may be found here.

OSHA Area Director Condell Eastmond’s comments were all too familiar: “Three employees needlessly lost their lives and others were injured due to their employer’s failure to follow safe work practices.”

This case should remind all employers that confined spaces within the workplace often present difficult and involved identification, training, written program management and compliance documentation retention issues.

What responsibility do companies have to ensure that their contractors protect their workers?

Those organizations that have a record of previous “serious” violations must be aware OSHA will rigorously enforce employee training, workplace safety information requirements, toxic workplace condition testing and all related rescue and emergency safety equipment regulations and will issue repeat, willful and, in extreme cases, criminal violations, should subsequent violations be documented by OSHA.