A Comprehensive Guide to COVID-19 OSHA Complaints
As of early April, workers in 30 states have submitted over 3,000 coronavirus-related OSHA complaints, according to the Washington Post. The number from the entire nation is undoubtedly larger–and still growing. The year 2020 is presenting very different workplace safety issues than we've ever dealt with before. Store clerks and nurses – traditionally not considered high-risk occupations – are dying on the job. Basic sanitation supplies are hard to come by. And even now, we don't truly understand the biggest safety and health threat on everyone's minds. Given all these factors, what can employees expect from their employers? What can employers do to protect their staff? And what is OSHA's role in the mix?
How, Why, and When to File an OSHA ComplaintUnder the federal Occupational Safety and Health (OSH) Act, workers in the U.S. have a right to safe and healthy working conditions. OSHA also guarantees their right to file a complaint against their employer without fear of retaliation when they believe that:
- there is a serious hazard in the workplace
- their employer isn't following OSHA "standards" (regulations)
What Form Do You Use to Submit an OSHA Complaint?There are multiple ways to submit an OSHA complaint, some of which don't even require a form. The options include an online OSHA complaint form, submitting a written OSHA complaint form by fax, mail, or email, and calling your local OSHA office. In-person options are currently suspended.
How Does OSHA Respond to Health and Safety Complaints?There are two possible paths after an OSHA complaint is filed: an on-site inspection or a phone/fax investigation. Rapid response investigations (RRI) are reserved for imminent danger complaints, as well as incidents that have resulted in a death or the hospitalization of three or more employees. In mid-April, OSHA confirmed that it will prioritize COVID-19 complaints for inspection when they come from healthcare organizations and first responders at the highest risk for exposure. Low or medium-risk workplaces are typically handled as phone/fax investigations, and OSHA has confirmed this will be the case for COVID-19 complaints from workplaces that require frequent or close contact with people who may be (but are not known to be) infected with the coronavirus. That doesn't mean these employers are off the hook, though. Employers have to respond with measures they're taking or plan to take to reduce risk. Inadequate responses will be escalated and may be subject to on-site inspection.
Is COVID-19 Covered By OSHA?Here's a question you might be asking yourself: how can workers file an OSHA complaint about a problem that doesn't exist in its standards? It's true that no specific federal guidelines exist regarding the spread of respiratory infections in the workplace. Standards do exist for bloodborne pathogens. Additionally, California's approved State Plan addresses Aerosol Transmissible Diseases like novel coronavirus, but it only applies to certain high-risk workplaces. However, the OSH Act contains a General Duty clause that serves as a catch-all for hazards that aren't recognized in specific OSHA standards. Essentially, it says that if a recognized hazard exists in a workplace that is likely to cause death or serious physical harm, an employer needs to take steps to reduce the risk to their employees. COVID-19 is certainly now a recognized hazard, and we know it causes death or serious physical harm to a significant portion of people who catch it. That puts it under OSHA's jurisdiction.
How to Avoid OSHA Complaints Related to COVID-19No employer wants to deal with an OSHA investigation. But the Washington Post's findings point to a COVID-related OSHA complaint as inevitable if your workers don't feel you're doing your best to protect their health and safety.
Why Should Employers Care About Protecting Workers from COVID-19?Beyond any ethical or moral duty, beyond even regulatory or publicity-based concerns, there are real, practical economic considerations. As OSHA has pointed out, workers who see their employer making efforts to protect them are more likely to keep showing up for work. With unprecedented levels of unemployment at the moment, it might look like labor is replaceable. But employee turnover is expensive, even in a favorable market. The cost of hiring and training, the reduced productivity of new workers, and the lost institutional knowledge from trained workers will altogether cost you roughly 33% of a worker's annual wages per replacement. And if your current employees decide conditions are too dangerous, it's likely their replacements will as well. You could end up in a very expensive churn cycle that outstrips any preventative costs you could have put in place. With experts estimating 18 months to 2 years before a working COVID-19 vaccine, even predicting this won't be the last pandemic of its size in our lifetimes, you need to think of pandemic safety as a necessary long-term investment.
What Can You Do to Protect Workers From COVID-19?OSHA has published industry-specific guidelines for COVID-19 covering everything from manufacturing to retail and delivery. These are well worth a read, but they boil down to the precautions you're seeing relayed to the general public: send sick workers home, clean hands and surfaces frequently, maintain a six-foot distance, and let workers wear a face mask. That's great, but what do you do when soap and masks are on back-order?
How Do You Protect Workers When Supplies are Hard to Come By?The Washington Post reported that many coronavirus-related OSHA complaints were about a shortage of personal protective equipment (like masks) or sanitary supplies (like hand soap, hand sanitizer, and surface cleaners). Workers turned to OSHA after employers just shrugged and cited supply chain disruption and high demand. Inevitably, there are certain supplies that you need to keep your staff safe. But OSHA (and your employees) expect you to make a good faith effort to find other solutions, like alternative supplies or engineering and administrative controls. OSHA suggests the following alternate solutions:
- Seeking alternative suppliers or sources for critical supplies
- Switching to another EPA-approved List N surface-cleaning product
- Finding OSHA-sanctioned alternatives to N95 masks in high-risk industries
- Erecting physical barriers like plexiglass shields when distancing is impractical or impossible
- Providing visible cues to reinforce appropriate distances and behaviors
- Using self-checkout or no-contact transaction methods
- Offering in-store pickup, curbside pickup, or delivery to reduce store traffic
- Staggering employee break times and arrival/departure schedules
- Designating personnel to manage and reinforce coronavirus measures
- Studying current SOPs and physical spaces to find innovative solutions (think: maximizing social distance, minimizing contact, eliminating tool sharing or the passing of items)