Will OSHA cite me for requesting employees not wear masks?

September 1, 2020

While several employees wanted to wear masks upon his office reopening, Dr. Covid reminded them that their state governor and city mayor did not require their use. Now an employee has contracted COVID-19 from a patient and has filed a complaint with the Occupational Safety and Health Administration. Should he be concerned?

Dr. Covid has a 20-year highly successful dermatology practice, which, like many in the United States, shut its doors in early March. He felt quite fortunate that he lived in a state that “opened” early. By May, he was back to being as busy as ever. His state guidelines do not require the use of protective masks in his office setting. He has asked his staff not to scare his patients by wearing masks due to his high-end practice. While several employees wanted to wear masks, Dr. Covid reminded them that their state governor and city mayor did not require their use.

Soon after resuming practice, one of his employees became infected with COVID-19. Contact tracing showed the employee likely became infected from a patient. The employee quit her job and put Dr. Covid on notice that she will sue him over his policies

The employee sought advice from friends, one of which is a healthcare expert who advised her to file a complaint with the Occupational Safety and Health Administration (OSHA). She let Dr. Covid know that she has done this, and he contacted his medical malpractice carrier to ask about his coverage for such a lawsuit. He found out that his malpractice insurance will not cover such a claim. He also contacted his general liability insurance company and is informed that alleged OSHA violations are also not covered under this policy. Dr. Covid hires an attorney. Is OSHA likely to come after him?

The reality is that OSHA, which is the federal agency meant to protect employees has mostly not inserted itself in COVID-19 employee-related issues. As the number of infections continues to climb, OSHA has not provided any clear directions to employers.

The New York Times published an opinion in June, which noted that courts have not offered relief to workers.1 In fact, the article states, “the U.S. Court of Appeals for the District of Columbia [recently] dismissed a lawsuit by the AFL-CIO that would have compelled OSHA to issue emergency rules for worker protection, saying the agency can determine its own standards.” The result of this statement, the article states is that millions of employees are working under a variety of conditions – some more hazardous than others.

Even when OSHA has received credible complaints of unsafe conditions, thus far, OSHA has failed to act, the New York Time states. For example, the article cites an incident in which workers at a Nebraska beef processing plant alleged that they were not able to social distance during lunchtime or in locker rooms “despite a number of positive COVID-19 cases.”

OSHA did not inspect the site and did not issue any citations; yet, hundreds of workers became infected with the virus. In fact, according to the New York Times, OSHA has, thus far, received over 5,000 complaints related to the coronavirus since the earliest days of the pandemic. However, the organization has issued only one citation, which was to a Georgia nursing home for failing to file the required report employees hospitalized with COVID-19 within 24 hours.

Of note, “even before the pandemic, OSHA has always been too overwhelmed to meet its mandate,” the New York Times states. There are just not enough inspectors to cover the United States. In fact, it has about 200 fewer than were employed in 1975, the article states.

One may question the wisdom of Dr. Covid’s decision not to have staff wear masks during the pandemic. However, it is not likely that he will be cited by OSHA.

REFERENCE:

Why is OSHA AWOL? New York Times. https://www.nytimes.com/2020/06/21/opinion/coronavirus-osha-work-safety.html Published June 21, 2020. Accessed July 2020.

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