COVID-19, Enforcement and Inspection, Regulatory Developments

COVID-19: Fatality Results in OSHA Citation; ETS Imminent

On April 22, the Occupational Safety and Health Administration (OSHA) cited and fined a Naperville, Illinois, logistics center following an outbreak of COVID-19 in which one worker died. The agency is seeking $12,288 in fines for a serious violation of the General Duty Clause.

COVID-19 Safety Inspection

Chokniti Khongchum / Shutterstock.com

The General Duty Clause of the Occupational Safety and Health Act of 1970 (OSH Act) requires an employer to “furnish to each of his 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.” OSHA cites employers under the General Duty Clause when the agency has no established standard, such as in cases of heat illness, musculoskeletal disorders, and workplace violence.

On January 21, President Joe Biden issued an Executive Order (EO) directing OSHA to issue updated employer guidance for COVID-19 within 2 weeks and consider establishing an emergency temporary standard (ETS) by March 15. On April 26, the White House Office of Information and Regulatory Affairs received the text of the ETS. The emergency rule is undergoing regulatory review.

A few days after employees at Midwest Warehouse and Distribution System Inc. gathered in a facility break room for a luncheon, workers experienced symptoms consistent with coronavirus exposure. Employees began reporting to the company that they had tested positive for the coronavirus on October 27, 2020. One employee died from complications of COVID-19 on November 4, and 23 employees had tested positive for the coronavirus by November 9.

“This case is a tragic reminder of the importance of fully implementing coronavirus prevention measures that include wearing face coverings, physically distancing, and quarantining workers who exhibit symptoms to protect other workers from coronavirus exposure,” OSHA Naperville Area Director Jake Scott said in an agency statement.

OSHA alleged the company failed to take immediate steps to identify, inform, isolate, and quarantine potentially exposed employees. OSHA inspectors found the company failed to follow its own internally developed controls for potential coronavirus exposures or take immediate steps to contain the outbreak. The facility closed November 4, 2020, following discussions with the DuPage County Health Department.

On January 29, OSHA issued stronger employer guidance, recommending that employers conduct a workplace hazard assessment, identify and implement control measures, adopt policies to encourage infected employees to remain home, clearly communicate policies and procedures, and establish protections from retaliation for workers who raise coronavirus-related concerns. OSHA also encouraged employers to provide COVID-19 vaccination at no cost to employees.

On March 12, OSHA launched a national emphasis program (NEP) focusing enforcement efforts on companies and industries with the largest number of workers at serious risk of contracting the coronavirus. The NEP also prioritizes whistleblower protection enforcement for workers who face retaliation for reporting unsafe or unhealthy workplace conditions.

Targeted industries include ambulance and home healthcare services; correctional facilities; department stores, groceries, supermarkets, and restaurants; healthcare and long-term care facilities; meatpacking and poultry processing facilities; and warehouses and storage facilities.

Midwest Warehouse and Distribution System, based in Woodridge, Illinois, is a full-service logistics company servicing grocery, liquor and beverage, electronics, automotive, and other industries, according to OSHA. The company operates 15 warehouses nationwide.