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OSHA’s COVID-19 Crackdown Creates New Responsibilities for Facilities Managers

Building owners and employers have a lot to worry about now, from rising costs for nearly everything to accommodating the increasing number of remote workers. Unfortunately, new legal and compliance challenges have also sprouted up during the pandemic. One of the biggest may be OSHA’s enforcement of new COVID-19-related regulations.

Much has been written about the Biden Administration’s new vaccine mandate for companies with more than 100 employees (which would be enforced by OSHA). But let’s not forget about the COVID-related OSHA regulations and enforcement actions that have already been taking place.

OSHA has mainly targeted healthcare facilities like hospitals and nursing homes where virus infections and exposure is more likely. But commercial buildings haven’t been spared from COVID-19 enforcement actions. For example, a national auto insurance company with a branch in Denver, Colorado, is the latest commercial office to be nailed for lack of a COVID-19 safety and health plan.

The insurance company faces $23,406 in proposed fines after OSHA alleged employees were “needlessly exposed” to co-workers with coronavirus symptoms. The feds received an employee complaint after a worker’s COVID-related death, and the safety agency discovered the company failed to implement a COVID safety plan, use social distancing in its office, and allowed employees with virus symptoms to remain in the office.

While COVID-19 variants continue to emerge, it’s in building owners’ best interest to examine their safety and health plans regarding the virus. OSHA recently issued updated guidance on protecting non-healthcare employees from virus exposure (especially the unvaccinated), and facilities should update their COVID policies based on this guidance.

What is OSHA requiring?

As of October 1, OSHA has issued more than 650 COVID-related violations since July 2020, with total fines amassing over $4 million, according to the safety agency. Most of the inspections are prompted by worker complaints (which are protected under whistleblower laws). As of October 24, there have been 16,511 employee complaints regarding virus safety and health. And that’s not counting complaints made to state OSHA agencies (which total nearly 58,000).

In July, OSHA issued interim enforcement guidelines that let inspectors (and facilities) know what COVID-safety and health prevention measures should be taken. For commercial offices, OSHA is focusing on protecting workers who are unvaccinated or not fully vaccinated. The agency recommends establishing multiple layers of control to prevent virus exposures and infections.

For example, facilities should establish social distancing requirements, maintain ventilation systems to limit COVID transmission, and continue to require masks and face coverings. OSHA is also targeting facilities that retaliate against employees who complain of lack of virus safety measures or report infractions to the agency. This one is a no-brainer, but remember to be transparent and open to all employee complaints regarding COVID-19 in the office.

There are also recordkeeping and administrative rules to remember. OSHA requires employers to keep COVID-19 illness logs and record and report confirmed virus cases. This gets a bit confusing for commercial facilities. COVID-19 qualifies as a recordable illness according to OSHA, and it must be reported to the agency. However, it only has to be reported and recorded if there’s objective evidence that the confirmed case is work-related. So, even if you suspect the employee was exposed outside of work, legal experts advise erring on the side of caution and recording it as a workplace exposure, anyway.

State v. local

OSHA’s array of COVID-related safety and health regulations probably makes your head spin, and for a good reason. But what’s worse is that commercial facilities must also keep an eye on a confusing and ever-growing list of state and local virus safety rules. Some states and municipalities have regulations that are stricter than OSHA’s. Other states, though, have rules that flat-out contradict the federal agency.

For example, New York recently enacted the New York Health and Essential Rights (HERO) act. The HERO act requires all New York employers to implement safety measures and adopt a COVID-19 safety and health plan. In Texas, meanwhile, Governor Greg Abbot issued an executive order that prohibits employers from “compelling” workers to get a COVID-19 vaccine. Governer Abbot also, rather infamously, issued a ban on mask mandates in May, which is now tied up in several legal battles across the state.

The state OSHA agencies for Arizona, Utah, and South Carolina are also at odds with federal OSHA rules over COVID-19 safety regulations. States are allowed to operate their own safety agencies, as long as their requirements are “at least as effective” as that of federal OSHA. OSHA is threatening to revoke the three states’ ability to run their agencies unless they adopt stricter COVID rules.

The complex patchwork of regulations is nearly impossible to keep up with, especially for employers that operate in multiple jurisdictions. Legal experts say the best bet for building owners and employers is to stick to the national guidance and regulations regarding COVID-19, which are usually stricter. Employers will rarely get in trouble if their safety and health policies are more robust than less.

Cover your assets

There’s a lot of uncertainty around COVID-19 regulations, and the guidance from state, federal, and local government changes almost daily. However, there are a few general guidelines when it comes to OSHA’s COVID-19 safety and health rules you should follow.

Follow OSHA and CDC’s COVID-19 guidance for businesses and commercial facilities, especially regarding social distancing, cleaning and disinfecting your building, and quarantining employees who are infected with the virus. Always send employees home if they show signs of COVID-19 exposure, and don’t allow them to return to the office until cleared by a medical professional. Remote and flexible work makes this situation much easier.

Utilize the OSHA and CDC guidance (and check for updates) when writing your safety and health policies for COVID-19. OSHA generally looks favorably upon employers who make a “good faith” effort to follow their regulations, so do your best to follow the rules to a ‘T.’ Also, educate and engage your employees or tenants about the COVID-19 regulations, and be as transparent as possible. Letting employees know about COVID-19 exposures (while maintaining health confidentiality) will lessen the chance of worker complaints to OSHA.

Lastly, stay on top of the ever-changing guidance and virus-related regulations at the state, local, and federal levels. Team up with other departments, such as HR and legal counsel, to craft your policies and stay abreast of changes. Your best bet is to assign someone in the organization to keep track of the ever-evolving rules.

About 57 percent of all Americans are vaccinated against COVID-19, but the country is still averaging about 75,000 new cases per day. As the pandemic continues, OSHA has signaled that enforcing its virus-related regulations will be a priority. While healthcare facilities are the safety agency’s primary concern, commercial buildings and offices still need to adopt COVID-19 safety and health plans.

OSHA’s vaccine mandate for employers with 100 or more workers will undoubtedly get locked into lengthy court battles. Nevertheless, it’s still a good idea to prepare for the regulation and how you would implement it at your facility. The vaccine mandate is looming, but OSHA’s other virus-related rules are already in full swing. So, keep employees safe, healthy, and happy, and avoid legal liability, by doing your due diligence to follow state, federal, and local COVID-19 safety and health rules.

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