By: Thomas B. Song Carothers DiSante & Freudenberger LLP
Last month we forecasted that Cal/OSHA was primed to issue COVID-19 safety citations in the near future. Low and behold those predictions have come to fruition, and just in time for the Labor Day holiday.
In a public press release issued last Friday, Cal/OSHA has cited eleven employers for failing to protect workers from COVID-19, because they “did not take steps to update their workplace safety plans to properly address hazards related to the virus.” Civil penalties assessed ranged from $2,025 to $51,190.
Noticeably, the investigation that resulted in the highest amount of fines being imposed was “complaint-initiated” – meaning an employee called into OSHA – versus “accident-initiated” or otherwise based on an affirmative COVID-19 illness that occurred in the workplace and was reported to OSHA by the company as a serious illness. This is significant because it reinforces the fact that just because no actual injury or illness occurred, does not mean that Cal/OSHA will go easy on employers regarding their Injury and Illness Prevention Plan (IIPP) and COVID-19 workplace response plan.
Indeed, the $51,190 in fines most certainly stems from multiple “Serious” citations, highlighting that no actual injury or illness needs to occur in order for a serious citation to issue. (See CDF’s Law360 article, here, discussing the low burden of proof required to establish a serious violation.)
In its press release, Cal/OSHA also highlighted how a particular employer was cited because they “did not ensure their workers were physically distanced at least six feet apart in the processing area, nor did they install Plexiglas or other barriers between the workers.” It will be interesting to see what abatement is required by OSHA – whether that be better administrative controls and supervision, or the actual installation of physical barriers – and whether the employer will contest abatement under the “expedited” proceedings at the Cal/OSHA Appeals Board. Regardless, depending on the extent of the hazard and the reasonableness of less-expensive and equally effective abatement methods, employers may very well have good reason to contest the abatement method prescribed by Cal/OSHA. The above news from Cal/OSHA is unwelcomed, but was also highly expected. Employers should use this as a wake-up call to take COVID-19 precautions in the workplace seriously, and to review and update their IIPP and COVID-19 response plans as needed.