Amid initial criticism of federal OSHA’s enforcement efforts and a revelation in May 2020 that the Occupational Safety & Health Administration had issued only one COVID-19 related citation after two months of the pandemic, the agency has substantially stepped up enforcement. 

For example, a $28,070 fine against a New Jersey-based residential healthcare facility was imposed after finding it had failed to provide respirators to workers treating patients with COVID-19 like symptoms, and even after providing respirators, had failed to adequately train and evaluate workers on proper use. 

In another example, a $13,494 fine against a Louisiana-based healthcare system after finding its employees were either sharing used protective gowns or wearing no protective gown at all while treating patients.

Employers can expect increased enforcement by the Occupational Safety and Health Administration (OSHA) under the Biden administration. The Biden campaign says it will double the number of OSHA enforcement staff. That number, however, will ultimately depend on the budget approved by Congress.

In addition to fines, employers can expect possible legal action taken against them. As coronavirus infections surge, courts are now challenged by the emerging legal question: can an employee who contracts COVID-19 recover damages from an employer for failing to mitigate the risks of contracting the virus? 

Litigation against employers, with claims that safety precautions were missing from the workplace has already begun. Allegation of negligence, wrongful death and workers compensation claims have emerged and will continue to expand.

For example, in Travis County, Texas, District Court a certified nurse’s aide brought a suit against the nursing and rehabilitation center in Austin where she worked. The lawsuit alleges that the company didn’t provide masks and other protective gear, which exposed patients and staff to infection.

In a second suit involving healthcare, a certified nursing assistant at a long-term care facility, allegedly died after contracting the coronavirus at work. In addition to the notification of the impending lawsuit, the state of New Jersey has received at least 27 other claims related to the facility where she worked, most on behalf of residents. Lawyers for the claimants say management there was grossly negligent in failing to employ masks or gloves or take other precautions to prevent the virus’s spread.

It remains to be seen whether Congress will pass legislation providing COVID-19-related liability protections for employers, a contentious proposition. Therefore, according to Akerman LLP - HR Defense 2021, “[i]n the absence of clear legal guidance on the issue of liability for worker illness or death related to the pandemic, employers should remain ever-vigilant, continually evaluating and improving upon their safety procedures (both pandemic-related and not), maintaining candid, substantive communication with employees, and handling COVID-19 issues with care.”

Shari L. Solomon, Esq. is president and founder of CleanHealth Environmental, LLC. CleanHealth provides infection prevention and industrial hygiene training and consulting services geared toward facility personnel and vendors responsible for infection prevention, cleaning and disinfection, and facility operations and maintenance practices. Ms. Solomon possesses more than 20 years of environmental consulting and federal regulatory experience. An attorney by trade, combined with her experience in the industrial hygiene field with a focus on healthcare, Shari holds a unique expertise and understanding of liability prevention techniques, offering clients practical and valuable risk management solutions.