Employers are contesting OSHA citations for COVID-19-related violations at a rate that is five times higher than the national average for all federal workplace safety violations, according to a recent Bloomberg report.
Many employers are appealing their violations based on often-changing OSHA requirements as well as a belief that failing to appeal a violation may lead to civil litigation. According to OSHA, employers filed 172 appeals of COVID-related violations from July 1, 2020, to April 12, 2021, which represents approximately 42% of the 408 citations issued during that timeframe for at least 1,150 COVID-related violations.
A majority of the citations – 85% – involve healthcare facilities, with most of those involving alleged violations of OSHA’s respiratory protection rules:
Approximately five percent of the cases involve food-processing facilities such as meatpacking plants, where several shutdowns due to outbreaks have occurred.
Employee Litigation Concerns
While workers’ compensation programs in most states prohibit employees from suing their employers for work-related injuries or illnesses, a growing number of insurers are denying COVID-19-related workers’ comp claims. Employers may worry that failure to contest an OSHA COVID-related citation could bolster an employee’s claim against the company for failure to maintain a safe workplace.
In addition, since pinpointing exactly where an employee may have been exposed to or infected by COVID-19 is nearly impossible to prove, employers that have been cited for failing to report work-related infections have good reason to appeal if they conducted a good-faith investigation and were unable to determine whether or not an infection is work-related.
Companies may also be more likely to appeal violations to protect their reputations, as they do not want to be viewed as accepting OSHA’s conclusion that they have not followed federal guidelines for protecting workers against COVID-19, thus increasing the likelihood of subsequent violation reports.
Employers that have received notice of a COVID-19-related violation from OSHA should consider all their legal options in defending themselves, especially when it comes to contesting citations for exposure to COVID-19 where they lack control over workers’ activities outside the workplace.