Dear ABC Central Ohio Member,
As businesses continue to adjust to the rapidly changing environment impacted by COVID-19, it’s important to remain proactive in your preparation and response toward keeping employees safe. Remember, employers can be held responsible for workplace safety violations related to the coronavirus outbreak under OSHA’s “general duty” clause. Contagious diseases that are contracted at work (with the exception of the common cold or flu) are subject to OSHA’s recordkeeping requirements and must be recorded.
A general contractor has a responsibility to maintain a safe project site for its employees as well as a subcontractor’s employees; they must also make certain that a subcontractor does not create safety hazards for other subcontractors throughout the site. OSHA requires frequent and regular site inspections to verify this and an employer could be cited for a general duty clause violation where, for example:
- The pandemic virus was present in the workplace and the employer’s efforts to control exposure were insufficient.
- Employees were required to perform tasks that exposed them to hazards related to the coronavirus pandemic.
Feasible steps are required to eliminate or mitigate recognized hazards and employers should anticipate protecting their employees by implementing controls, changing work practices, and, where appropriate, providing personal protective equipment.
Subcontractors often have a higher degree of responsibility to exercise reasonable care to protect employees than the controlling contractor (your GC); however, under the definitions established in the OSHA Multi-Employer Policy, if a Controlling Employer requires a subcontractor to perform work in a hazardous environment, they may also become responsible for correcting the hazard and liable for injuries and illnesses for failing to do so. In addition, subcontractors that create or neglect a hazardous condition that violates an OSHA standard may be cited even if the employees exposed to the hazard are someone else’s employees.
It is critical that Owners and GCs are reminded that where an employee refuses to come to work for fear of contracting the COVID-19 virus, such refusal may be deemed a protected activity, triggering OSHA’s anti-discrimination and non-retaliation provisions. In addition, if two or more employees refuse to come to work or perform a task because of a safety-related concern, they may be engaging in activity protected by the National Labor Relations Act. If you do not secure a mutually agreed upon safe environment, you may not be able to man it… and even if you do everything available, you still may have employees who refuse to come to work for fear of contracting the COVID-19 virus.
When in doubt about your responsibilities related to Coronavirus under OSHA, contact your attorney.