In a new effort to use existing regulations to respond to the ongoing public health emergency, OSHA cited an Ohio healthcare company for alleged serious violations of OSHA’s respirator regulations. OSHA launched an investigation at three of the employer’s healthcare facilities after seven employees were hospitalized with COVID-19.

Even though the employer provided the necessary N95 respirators to its healthcare workers, OSHA alleges that the employer committed two violations of OSHA’s respirator standard: (1) failure to have a written respirator program and (2) failure to provide a medical evaluation to determine employees’ ability to use a respirator in the workplace. OSHA’s press release announced that it cited each of the employer’s three facilities for the same two violations and a total proposed penalty of $40,482.

While OSHA has up to six months to issue a citation, the Administration’s enforcement activity in response to the COVID-19 pandemic to this point has been modest, and the Administration’s critics have called on OSHA to take more aggressive enforcement actions. Similarly, OSHA has faced continued scrutiny to issue emergency regulations that address worker protections against the spread of COVID-19. However, the Administration has consistently pushed back against the need for emergency regulations and argues that its existing regulations—such as the respirator standard cited here—are sufficient to address the risks of COVID-19.

OSHA’s enforcement actions in this matter could suggest greater enforcement is on the horizon. OSHA’s Principal Deputy Assistant Secretary, Loren Sweatt, even released a statement highlighting the Administration’s enforcement action, which suggests that the citation has gained attention from OSHA’s leadership in Washington, D.C.

These citations demonstrate that even where employees provide necessary safety equipment, like N95 respirators for health care workers, they still must comply with all technical aspects of OSHA’s regulations. OSHA’s regulations encompass a wide scope of detailed obligations for employers, and even employers who strenuously work to provide a safe workplace can inadvertently violate a regulation.

For now, it does seem that OSHA is carefully cherry-picking cases with seemingly bulletproof facts and has targeted the healthcare industry because of front-line workers’ obvious exposure to COVID-19. In this instance, the cited employer allegedly had seven employees hospitalized due to COVID-19. Those types of facts definitely put a target on an employer’s back. As the numbers of COVID-19 cases rise around the country, particularly in places that were not hard hit at the beginning of the pandemic in March and April, we are likely to see an uptick of enforcement activity from OSHA.

Just because OSHA issues citations, however, does not mean they are valid. The Agency is under pressure to demonstrate that it remains effective in combatting the COVID-19 pandemic without a specific infectious disease standard. Jackson Lewis attorneys are available to assist employers to ensure that they are in compliance with all OSHA regulations and to defend against any citations issued.

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Photo of Melanie L. Paul Melanie L. Paul

Melanie L. Paul is Of Counsel in the Atlanta, Georgia, office of Jackson Lewis P.C.  She co-leads the firm’s Workplace Safety and Health Practice Group. Her practice focuses on occupational safety and health and wage and hour issues.  Ms. Paul’s clients benefit from…

Melanie L. Paul is Of Counsel in the Atlanta, Georgia, office of Jackson Lewis P.C.  She co-leads the firm’s Workplace Safety and Health Practice Group. Her practice focuses on occupational safety and health and wage and hour issues.  Ms. Paul’s clients benefit from her unique inside experience as a trial attorney for the U.S. Department of Labor (DOL) for more than a decade.

During Ms. Paul’s time with the DOL, she regularly appeared at hearings and trials before federal administrative tribunals and federal district courts throughout the southeastern U.S. in matters of Occupational Safety and Health (OSHA) law, Mine Safety and Health (MSHA) law, whistleblower and federal wage and hour matters.  She also defended agency management against allegations of employment discrimination and prohibited personnel practices before the EEOC and the MSPB.  While at the DOL, Ms. Paul was the Criminal OSHA Coordinator for the southeastern region and worked with U.S. Department of Justice to have Occupational Safety and Health cases criminally prosecuted.

Prior to working at the DOL, Ms. Paul gained invaluable trial experience as an Assistant District Attorney in Fulton County, Atlanta, Georgia where she tried felony criminal jury cases.  She also was a law clerk to U.S. Magistrate Judge Linda T. Walker for the U.S. District Court in the Northern District of Georgia, where she worked on predominantly employment discrimination cases.

During law school, Ms. Paul served as an Executive Articles Editor of the Washington University Law Quarterly (since renamed the Washington University Law Review) and also had her Note published in the law review.