IHMM Today December 8, 2020

OSHA Complaints and COVID-19 Investigations – Ogletree & Deakins

Are there any industry or timing trends in OSHA complaints?  Yes. The largest number of complaints filed with OSHA or state agencies have consistently related to hospitals, nursing homes, and post offices. Retailers, grocers, restaurants, and other public-facing businesses have received the second-highest percentage of complaints with construction and warehouse facilities following closely behind.

Can an employee sue an employer for OSHA violations? OSHA does not create a private right of action that would allow employees to sue a company for injuries or illness (COVID-19) caused by a violation of the Occupational Safety and Health Act of 1970 (OSH Act) or OSHA standards. On the other hand, OSHA regulations do not affect employee rights under state workers’ compensation laws to pursue lawsuits based on alleged violations of rights created by state statutes or common law. Evidence of OSHA violations, however, may be admissible as evidence in such suits depending on the jurisdiction. In tort lawsuits, evidence of an OSHA violation is normally allowed to show “some evidence” of negligence, while other courts have held that an OSHA violation constitutes “per se” negligence.

Can an employee bring a complaint relating to safety issues in the workplace? There are two types of employee complaints under OSHA:

1. Section 11(c) retaliation complaints under the OSH Act, which the U.S. Department of Labor can enforce through a civil enforcement action in federal district court; and
2. A safety or health complaint by an employee where OSHA can dispatch an inspector to investigate and potentially issue a citation against the employer for any violations.

What is the OSHA General Duty Clause and what is the risk of a violation based on safety policies that are not followed? The General Duty Clause is found in Section 5(a)(1) of the OSH Act, 29 U.S.C. Section 654(a)(1), and it requires each employer to (1) “furnish to each of [its] 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,” and (2) “comply with occupational safety and health standards promulgated under” the OSH Act. State OSHA plans have similar requirements.

There have been a handful of general duty clause citations in some jurisdictions based on violations of social distancing and other general infection prevention guidance. OSHA’s Revised Enforcement Guidance for Recording Cases of COVID-19 describes the factors a CSHO needs to consider before issuing a COVID-19 based General Duty Clause citation and the use of CDC guidance to assess potential workplace hazards as follows:

General Duty Clause. If deficiencies not addressed by OSHA standards or regulations are discovered in the employer’s preparedness for controlling elevated occupational exposure risk for SARS-CoV-2, and guidance is available (e.g., CDC), follow the FOM guidance for obtaining evidence of a potential general duty clause violation, including the four required elements:  (1) The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed; (2) The hazard was recognized; (3) The hazard was causing or was likely to cause death or serious physical harm; and, (4) There was a feasible and useful method to correct the hazard.

Unless the case file evidence establishes that all four of the above elements, the Area Office should issue a hazard alert letter (HAL) recommending the implementation of protective measures that address SARS-CoV-2 hazards. For example, if there is no evidence that an employee was potentially exposed to the virus in the workplace, then the first element is not met. See Attachment 3 for a sample HAL.

Use of CDC recommendations. The most current CDC guidance should be consulted in assessing potential workplace hazards and to evaluate the adequacy of an employer’s protective measures for workers. Where the protective measures implemented by an employer are not as protective as those recommended by the CDC, the CSHO should consider whether employees are exposed to a recognized hazard and whether there are feasible means to abate that hazard.

OSHA’s burden of proof on a General Duty Clause citation is rigorous and each of the four required elements described above must be satisfied to sustain a General Duty Clause citation.

Also, there may be some risk to employers for a General Duty Clause citation for a failure to implement a company’s safety procedures. In May 2020, , the U.S. Court of Appeals for the District of Columbia Circuit issued a decision that should be of concern to every employer and safety professional. The case, BHC Northwest Psychiatric Hospital, LLC v. Secretary of Labor, 951 F.3d 558 (D.C. Cir. 2020), involved an employer that had ambitious but unimplemented requirements in its written safety procedures—the lack of implementation in large part caused the employer to be found guilty of a violation of the General Duty Clause. This decision is a reminder to employers to be vigilant in following through on safety procedures adopted in the workplace.

Beltway Buzz – Ogletree Deakins

Following the Thanksgiving break, federal legislators have been back in Washington, D.C., this week as the 116th United States Congress—which will likely end on January 3, 2021—sprints toward the finish. Tops on the congressional to-do list is avoiding a government shutdown, which will happen on December 12, 2020, if Congress does not act. (Incidentally, the 35-day record-breaking federal government shutdown that took place between December 2018 and January 2019 began right around this time two years ago—on December 22, 2018.) Of course, with COVID-19 cases spiking and the expiration of the Coronavirus Aid, Relief, and Economic Security (CARES) Act’s unemployment provisions looming, there is yet another push for further economic relief from Congress. Here is how that effort is shaping up.

• A bipartisan group of senators and representatives recently introduced a compromise stimulus package that would provide $908 billion in funds for unemployment insurance, Paycheck Protection Program (PPP) money, and aid to state and local governments. It also would provide for certain short-term liability protections from COVID-19–related lawsuits to allow states time to come up with their own responses. The bill enjoys the support of Democratic leaders Senator Charles Schumer and Speaker Nancy Pelosi.
• In the U.S. Senate, however, Republican leaders have their own ideas regarding an appropriate response, which does not bode well for the compromise legislative vehicle. Their proposal is a trimmed-down package with a smaller price tag that is similar to the bill that was twice blocked in the Senate in September and October of this year.
• The legislative roadblocks appear to be unchanged from what we have seen previously: liability protections (viewed by opponents as harmful to workers and consumers) and money for state and local governments (viewed by opponents as bailouts that might be used to address non-COVID-19–related fiscal matters).
• That all being said, it appears that the parties are closer than they have been in months to striking a deal. The Buzz will be monitoring the negotiations and will notify you of developments as they happen.

Senate Passes Immigration Bill. On December 2, 2020, the Senate passed by unanimous consent the Fairness for High-Skilled Immigrants Act of 2020 (S. 386 / H.R. 1044). The bill, which would eliminate the per-country caps for employment-based immigrants, passed the U.S. House of Representatives in July 2019 by an overwhelming vote of 365–65. Now, however, Congress must reconcile the existing differences between the two versions of the bill. Accomplishing this, in addition to securing President Donald Trump’s signature, all before the 116th Congress adjourns, will be a challenging task. If this doesn’t happen, the entire legislative process must be restarted in the new Congress.

H-1B Regulations Struck Down. This week, the U.S. District Court for the Northern District of California struck down both the U.S. Department of Homeland Security’s (DHS) H-1B reform rule and the U.S. Department of Labor’s (DOL) prevailing wage rate rule. Brian Bumgardner, Ceridwen Koski, Melissa Manna, and Samantha Wolfe have the details on the decision. The order was issued by U.S. District Judge Jeffrey White, who also recently struck down DHS’s proposed increases to U.S. Citizenship and Immigration Services’ (USCIS) fee schedule, as well as President Trump’s June 22, 2020, proclamation suspending the entry of H-1B, H-2B, J-1, and L-1 visa holders into the United States.

H-1B Wage Prioritization Proposal. December 2, 2020, was the deadline for stakeholders to submit comments in response to USCIS’s proposal to scrap the H-1B lottery in exchange for a process that prioritizes selection of H-1B applicants with the highest promised salaries. An extremely quick review of the comments could result in finalization of the rule prior to January 20, 2021, but whether the rule can become effective within that timeframe is doubtful.

The Last Opinion Letters? This week, the DOL’s Wage and Hour Division (WHD) issued two opinion letters, one dealing with the calculation of the regular rate for employees paid on a piece-rate basis and the other dealing with the agricultural exemption of the Fair Labor Standards Act. With a change in presidential administrations due to take place in just a matter of weeks, could these opinion letters represent the WHD’s final opinion letters, or will there be more to come? Whether it is these two letters or subsequent letters that might issue prior to January 20, 2021, these could be the last opinion letters we see in quite some time, as it very possible that the incoming administration could end or alter the opinion letter process.