OSHA Regulations You Need to Know in the Time of COVID
When you hold a hand up to your ear, you can hear the gentle roar of the OSHA…
OSHA, the Occupational Safety and Health Administration, is the federal agency that regulates workplace safety and health. In light of the ongoing global Covid-19 pandemic, we wanted to take a look at how OSHA is shaping the way operations, and in particular warehouses, are being impacted.
Employers Must “Adequately Protect” Employees Amidst Covid-19, And It Is Likely That OSHA - Not Courts - Will Be Tasked With Balancing Employee Protection
On November 2, 2020, a federal judge granted Amazon’s motion to dismiss a lawsuit brought by Amazon employees. In Palmer v. Amazon, Docket No. 20-cv-2468 (https://www.wlf.org/wp-content/uploads/2020/11/123117129509.pdf), the court summarized the “central issue in this case [as] whether Amazon’s workplace policies at JFK8 adequately protect the safety of its workers during the COVID-19 pandemic.” In dismissing the employees’ claims, the court relied on a legal doctrine of “primary jurisdiction,” which permits a “district court to refer a matter to the appropriate administrative agency for ruling in the first instance.” The rationale behind this policy is to ensure “uniformity and the reliance on administrative expertise.”
To be clear, there have been lawsuits that have been permitted to proceed in different jurisdictions. For example, McDonald’s workers in Chicago were permitted to challenge their employer’s efforts to protect workers from Covid-19. https://news.bloomberglaw.com/daily-labor-report/mcdonalds-cant-get-early-exit-from-virus-worker-safety-case
Either way, it is critical for a warehouse to understand the nature and scope of OSHA guidance. This is briefly discussed below.
OSHA Has Not Issued Covid-19 Specific Standards, But It Has Issued Guidelines
In dealing with Covid-19, to date, OSHA has relied “on optional guidance and existing standards for … personal protective equipment, general environmental controls, and toxic and hazardous substances,” among other things. Palmer, at p. 10. In other words, OSHA has determined that a new standard “‘is not necessary at this time’ to combat this unprecedented pandemic because it has existing regulatory tools at its disposal ‘to ensure that employers are maintaining hazard-free work environments.’” Id.
The guidelines from OSHA can be found at: https://www.osha.gov/Publications/OSHA3990.pdf. We aren’t going into the 35-page document in detail here, but note some of the following guidance, characterized by OSHA as “basic steps that every employer can take to reduce the risk of worker exposure to SARS-CoV-2 in their workplace.” https://www.osha.gov/Publications/OSHA3990.pdf (p. 7). These include:
Developing an infectious disease preparedness and response plan
Emphasizing basic infection prevention measures;
Developing policies and procedures for identifying and isolating sick people;
Developing, implementing, and communicating about workplace flexibility and protections;
Implementing workplace controls (including engineering controls, administrative controls, safe work practices, and personal protective equipment;
Following existing OSHA standards
State Plans
A “State Plan” is an “OSHA-approved safety and health program that enforces its own occupational safety and health standards which are required to be at least as effective as federal OSHA’s, but may have different or additional requirements.” https://www.osha.gov/contactus/bystate/CA/areaoffice
The California State Plan is applicable “to all public and private sector places of employment in the state with the exception of federal government employees.” (https://www.osha.gov/contactus/bystate/CA/areaoffice) Further, CAL-OSHA has prepared more resource materials, including Covid-19 Industry Guidance for different facilities, including guidance specifically for Logistics and Warehousing Facilities.
Check out the complete guidance for logistics and warehousing facilities here. Many of the recommendations are things that have become commonplace now, including “physical distancing to the maximum extent possible” Warehouses are implementing new technologies like wearable scanners with proximity sensing to maintain safe workplace distancing. The use of face coverings, frequent hand washing and regular cleaning and disinfection, and worker training on preventive measures.
In October 2020, two of Amazon’s California warehouses were cited by California’s division of OSHA, known as “Cal/OSHA,” for violating these standards. Amazon has indicated their intent to appeal these determinations.
Remember that this information is being provided as a brief introduction to the landscape of OSHA regulations, and does not constitute legal advice. State-specific regulations and conflicting court cases means warehouses must continue to educate themselves and employees as we learn to live in the new-pandemic normal.
