As we discussed in prior updates, when OSHA withdrew its Emergency Temporary Rule requiring large employers to vaccinate or test their employees, it indicated that it was going to ensure that workplaces were COVID – safe by using the General Duty Clause. The General Duty Clause requires employers to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” COVID is a recognized hazard that is causing or likely to cause death or serious physical harm.
OSHA indicated that it will generally consider employers who fail to follow the current CDC COVID – related guidance to violate the General Duty Clause. (penalties for violations of the GDC range from $13,653 to $136,532 per violation.)
So, knowing and following, and being able to prove that you follow, current CDC guidance related to COVID is going to be critical.
Last Friday the CDC indicated that it is changing the way that it measures high, medium, and low transmission areas, which in turn dictates whether people are recommended to wear face coverings. Prior to the change of last week, more than 90% of the U.S. pollution lived in an area classified as “high”, meaning that the CDC recommended that they wear face coverings indoors in public. Under the new methodology, each county/parish is given a “COVID community rating” (green, yellow, or orange). The different levels will determine which preventative measures the CDC recommends that you take.
Under the new standards, approximately 30% of the population will reside in an area classified as “high”/orange, which recommends wearing a mask indoors in public. You can find the CDC’s community-level tool here https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-county.html to determine the color/level of your area. Currently, East Baton Rouge is low/green. This means that the CDC recommends staying up to date with COVID vaccinations and testing if suffering from symptoms, but it leaves the decision to wear face coverings up to the individual. Although this latest announcement by the CDC is not specifically related to employers, OSHA is likely to consider it when determining if an employer has violated the General Duty Clause.
Of course, local communities may implement their own requirements for face coverings. We do not know for certain if OSHA will consider the failure to follow locally required COVID precautions as a failure to comply with the General Duty Clause, but it is certainly a possibility, depending upon the facts of the situation.
Bottom line: Assign someone to stay up to date with the CDC’s most recent positions on COVID protection and ensure that your organization complies with them.
As always, don’t hesitate to call me directly if you require any assistance in working your way through the employer’s various COVID-related obligations.