COVID-19 and The General Duty Clause (“GDC”)

OSHA has reportedly opened up over 400 investigations related to COVID-19.  These investigations may cover compliance issues related to the employer’s specific obligations to properly record and report COVID-related illnesses and to provide the proper personal protective equipment to employees in high-risk work environments.  OSHA may also be investigating employers for failing to comply with their obligation under OSHA’s General Duty Clause (“GDC”) by providing employees a safe workplace that is “free from recognized hazards.”

Whether OSHA investigates complaints and illnesses involving COVID-19 is a policy decision that might be subject to change depending on the overall circumstances in a given industry or at specific employer’s location, notably where an unusually high number of COVID-19 cases are identified.  A diligent employer should be prepared to defend itself in any such investigation by carefully evaluating all the recommended measures proposed by the CDC and OSHA to determine if these measures are both feasible and effective in protecting its employees. Each employer should have “pandemic plan” that implements the measures being adopted by the employer to address the exposure of its employees to the hazard of COVID-19 in its workplace. 

In addition to its specific compliance standards, OSHA requires employer to comply with the GDC, a catchall obligation designed to address recognized hazards within the employer’s industry for which no specific standard exists. The GDC, section 5(a)(1) of the OSH Act, requires the employer to furnish to each of its employees “a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.” Because there are no specific OSHA standards addressing most of OSHA’s recommended abatement actions related to COVID-19, the GDC provides a useful tool to the employer for developing a pandemic plan that allows it to safely operate while the threat of the virus is still high. 

Though the terms of the GDC may seem too broad for providing any specific guidance in developing a pandemic plan, the manner in which the GDC is enforced makes it a useful tool for determining whether the specific recommendations of OSHA are appropriate for an employer’s workplace.

In order establish a violation of the GDC, OSHA must prove the following:

The employer failed to keep the workplace free of a hazard to which its employees were exposed

• The term “free” does not impose strict liability on the employer but only requires the employer to take the steps necessary to eliminate the preventable The inquiry regarding this element will turn on whether the employer took steps to prevent reasonably foreseeable exposure to the virus.
• This duty also applies to any place an employee may be required to visit as a condition of his work. If employees are required to make deliveries or provide services outside a controlled work environment then the employer should consider methods of restricting the employee’s exposure to the virus in these remote environments through administrative controls and PPE where necessary.
• Even where no employee contracts the virus, OSHA could nonetheless cite the employer for not taking “adequate” steps to protect its employees against preventable exposure to the virus. Whether an abatement method is “adequate” will turn on the specific facts of the work environment but it is nonetheless helpful to determine what has proven to be effective within the employer’s industry.
• OSHA’s recommendations are not requirements. Even though OSHA is supposed to only cite an employer under the GDC for not addressing a specific hazard, OSHA nonetheless often erroneously cites employers for not adopting the specific abatement methods recommended by OSHA.  This error is known as “citing the abatement and not the hazard.”  This distinction is important because the employer’s duty under the GDC is to address the hazard, and not to necessarily adopt the specific abatement measure preferred by OSHA.  As noted below, OSHA is required to prove there were alternative methods of abatement available to the employer when such a failure to address the hazard has been proven, but OSHA cannot use the GDC to dictate which methods of abatement must be adopted by the employer in addressing the hazard.  As such, an employer is not necessarily required to follow OSHA’s recommendations in developing a pandemic plan, however the employer will need to be able to establish that it otherwise adequately addressed the same hazards as OSHA’s recommendations through alternative means. 

The condition must be recognized by the employer or the employer’s industry as being hazardous

• A “condition” is a material or process that exposes the employee to the virus as the employee engages in work-related activities. Though COVID-19 is almost universally recognized as a hazard in itself, the question is whether the workplace condition is “recognized” as being one that contributes to the employee’s exposure to the virus. For example, where employees exchange materials by hand or work in close proximity to each other are conditions that will likely be recognized within an industry as being hazardous because they increase the employee’s exposure to the virus.  
• The employer is not expected to be omniscient. The proper inquiry is whether the employer or a reasonable safety professional familiar with the employer’s industry would have recognized the condition as hazardous. In this regard, the hazard needs to be reasonably foreseeable. Exposure to COVID-19 might be reasonably foreseeable where employees stand immediately next to each other on an assembly line but not where employees work at stations separated by partitions or by sufficient distance. 
• Even where industry experts might not identify a condition as hazardous, an employer’s actual or constructive knowledge of a hazardous condition may still be inferred from the specific circumstances, such as an identifiable cluster of infections that are concentrated within the employer’s workplace. By contrast, if a workplace has a statistically normal distribution of infections that is consistent with the surrounding the community then these infections would not likely allow for the actual knowledge of a hazardous work condition to be inferred on the part of the employer.
• Be aware that OSHA will find the hazardous work condition was recognized by the employer where the employer took abatement actions to address that hazard but employees were nonetheless exposed to the hazard. This typically arises where measures taken by the employer are deemed inadequate for the purpose of addressing the hazard. The key point here is to only adopt those abatement measures that adequately address the hazard.  For example, posting a sign to maintain social distancing in the workplace will not be adequate where employees are required to work side by side on an assembly line.  All this sign will do is establish the employer had actual knowledge of the hazardous condition and failed to provide an adequate form of abatement. In this case, an alternative to social distancing such cohorting might be considered.

The hazard was causing, or was likely to cause, death or serious physical harm

• It is important to note that the inquiry here is not in regards to whether it is “likely” the employee will be exposed to the virus, but rather the question is whether it is likely the employee will become seriously ill once the virus is contracted.
• The courts have struggled with how to interpret and apply this part of the GDC, and its application to the COVID-19 virus will only highlight these challenges. For example, the current statistics suggest that contracting the virus will most likely not lead to a life-threatening illness, however the courts have sometimes interpreted the GDC more broadly such that an employee simply contracting the virus might be sufficient for OSHA to meet its burden of proof. For purposes of being proactive, a diligent employer should assume that COVID-19 has a sufficient mortality rate to satisfy this element.

There was a feasible and useful method to correct the hazard

• For purposes of complying with the GDC, OSHA’s primary inquiry will focus on whether the employer failed to implement a feasible means of abatement to protect its employees from the hazardous condition. To be “feasible” the proposed method must be recognized by “knowledgeable persons familiar with the industry as necessary and valuable steps for a sound safety program in the particular circumstances existing at the worksite.”
• OSHA will need to show that the employer’s chosen methods of abatement were “inadequate,” and that alternative means of abatement were available to the employer which would have eliminated or otherwise materially reduced the hazard. Where the employer is relying on a combination of actions to abate the COVID-19 hazard, it will want to demonstrate that there were no additional feasible methods available to it that would have materially reduced its employees’ exposure to the virus.
• A “method of abatement” may be a single approach to address the hazard or it might be a “process approach” whereby the employer takes a combination of actions to eliminate or materially reduce the hazard. In regards to COVID-19, OSHA’s recommendation cover a combination of engineering controls, administrative controls, work practice controls and the use of PPE. In developing its plan to address the virus, the employer should consider all its methods of abatement collectively and document them as such in its pandemic plan. For example, an employer might want to introduce positive ventilation into a work environment, space employees further apart on an assembly lne, stagger shifts and breaks, and require the use of PPE such as masks and gloves. Though no single part of this process approach might be deemed adequate in isolation, the collective effect of implementing the combination of these measures together will be adequate.
• Ultimately, whether an alternative means of abatement is “feasible” turns on both whether the method is both technologically and economically capable of being implemented. A cost-benefit analysis should be conducted to determine whether a notable benefit is created by the method of abatement at a justifiable cost. In making this evaluation, courts often look at the investment the employer has made to achieve equal benefits from other methods of abatement. For example, if an employer has previously demonstrated it can successfully slow the assembly line on a temporary basis to account for interruptions in the supply chain or to accommodate a large number of absences then it may be deemed feasible to temporarily slow the assembly line to allow for greater spacing between employees or the implementation of additional shifts.  Quite obviously comparisons such as this require a fact intensive inquiry but it is one that employers may be required to make when evaluating whether a recommended means of abatement is feasible. Where distancing or adding a shift is not possible, the employer may implement a cohorting policy that minimizes the number of employees each individual employee is exposed to while at work; i.e., minimize the transferring or rotation of other employees between different departments and shifts.

Developing, and implementing a pandemic plan that effectively implements each of the type of controls identified by OSHA (engineering, administrative, work practice, PPE) is a process approach that requires multiple actions to be taken by the employer. To assist the employer, OSHA has offered several recommendations in its various guidance documents, most notably in its Guidance on Preparing Workplaces for Covid-19. 

The General Duty Clause provides a useful framework for evaluating the usefulness and feasibility of each of these recommended actions, along with any other measures not specifically recommended by OSHA.  Whether an employer adopts OSHA’s recommendations, it should nonetheless have a pandemic plan in place that demonstrably protects its employees from unnecessary exposure to the COVID-19 virus.