Key Steps In Responding to a COVID-driven OSHA Complaint

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On Saturday, July 11, 2020, South Carolina hit two new milestones in the COVID-19 crisis: an all-time daily high of 2,239 new cases and the first in-state death of a child from the coronavirus, according to DHEC. On July 12, 2020, DHEC confirmed another milestone with the announcement of the first two cases in-state of Multisystem Inflammatory Syndrome in Children (MIS-C) associated with COVID-19. Both of those cases involve children under the age of 10.  

The convergence of these three incidents should prompt all employers to re-evaluate their COVID-19 preparation plan because employees are likely to be more concerned than ever before about their workplace exposure and the risk it may pose to their loved ones at home. The Occupational Safety and Health Administration published a guide at the pandemic’s outset to assist businesses with the development of COVID-19 preparation plan. As this fluid situation has continued to evolve, OSHA has published interim enforcement guidance, just as the CDC and DHEC have published updated Interim Guidance from a public health perspective. See the Interim Guidance here. Employees who are fearful or dissatisfied with the means taken by their employer may initiate a complaint with OSHA.

Since the pandemic’s inception, OSHA has received a growing number of complaints across the country from employees engaged in various industries. As of July 10, 2020, the federal OSHA programs have received 6,442 complaints and the state OSHA programs have received 16,199. In South Carolina, OSHA is a state-administered program housed under the umbrella of the South Carolina Department of Labor, Licensing and Regulation. A complete overview and breakdown of the complaints received by OSHA through both its federally and state-administered programs is available here.

What Should a Business Do in Response to an OSHA Complaint?

If OSHA receives a complaint related to COVID-19 about your business, you will likely receive an informal telephone call notifying you that a complaint has been received and that a letter formally advising you of the allegations asserted will be forthcoming. A common allegation is that an employer does not have an appropriate plan in place or is not implementing the provisions of the plan to keep employees safe.

The best defense is to establish the strong offense that the employer implemented in advance of the formal written complaint:

1. Return any telephone calls from an OSHA investigator as soon as possible to introduce yourself and obtain as much information as possible about the nature of the allegations asserted against your business. Where appropriate, enlist the assistance of counsel to develop an outline of facts to cover during the conversation or retain counsel to handle the conversation if warranted by the circumstances.
2. Briefly outline the measures the employer has in place to refute the allegations asserted during the initial communication with the investigator. This may include production of printed guide, signage, policies, temperature checks, etc.
3. Highlight employer’s compliance with CDC and DHEC’s Guidelines and offer to provide documentation, if required.
4. Provide data regarding voluntary initiatives undertaken, such as workplace COVID-19 testing programs.
5. Provide data regarding COVID-19 impact on workforce, i.e., number of employees under quarantine, under monitoring, etc.
6. Identify any industry-specific voluntary certification programs related to COVID-19 safety standards.

The seriousness of the allegations will determine the priority with which OSHA pursues an investigation of a complaint. If OSHA is presented with evidence that a complaint is unfounded, it will quickly move to close the case so that it can devote its valuable resources to the cases requiring more time and investigative resources.

Don't Wait To Re-Evaluate               

No business should wait for an OSHA complaint to come in to re-evaluate the efficacy of its COVID-19 response plan. The Nexsen Pruet team can help ensure you’re doing all that you can to protect your employees and their families during these uncertain times. We are all in this together.