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Regulators are finally looking at Covid-19 cases in the workplace

Updated: Aug 15, 2021

Companies need to be ready for the day of reckoning for any Covid-19 related illnesses or deaths that occurred during the pandemic. After 7 months, a groundswell of attention has occurred to these issues as the government and the popular press have both gone on alert on this issue. Despite the nearly 200 deaths occurring in US workplace regarding Covid-19 and numerous lawsuits attacking businesses for poor Covid-19 prevention and management, little attention has been paid by federal regulators to this issue. Now that many businesses are trying to repopulate their offices and factories, federal regulators are starting to go to work themselves.

Smithfield Foods has been a major focus of these investigations as at least 1,294 Smithfield workers contracted the coronavirus and four employees died this past spring. Just recently, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) fined the company $13,494. While this amount may appear trivial, this fine was the maximum allowable penalty. The implication of receiving a maximum penalty by an important group evaluating safety standards clearly sends the message that the company was guilty of not providing adequate employee safety. The findings of OSHA will clearly be used in individual and class action lawsuits to the detriment of Smithfield Foods.

OSHA also fined JBS foods, the largest meatpacking company in the world $15,615 for circumstances surrounding Covid-19 at the Greeley, CO plant where 6 workers died. The response to this fine has been completely divergent between the JBS management and the union at the plant. The company responded that the fine was meritless as the standard of hygiene and surveillance that is now required of Covid-19 precautions was nonexistent in February. The union workers at the plant have been protesting the fine and claiming that it is insufficient. Internally, both sides probably realize the cases will be litigated extensively in civil courts.

According to Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful working conditions for their employees. Recently when the Covid-19 pandemic infiltrated the US, OSHA issued guidance to employers regarding Covid-19. Although the OSHA Covid-19 guidance was not meant to establish a legal standard (that language and set of requirements could never have been completed in the necessary time frame), this guidance does put forth a set of common-sense suggestions that could easily be considered fundamental to manage employees in the Covid-19 era. A complete lack of acknowledgement of the suggestions would likely also violate federal (and possibly state) Covid-19 guidance as well as the principles of the OSHA 1970 Act.

Companies cannot change their initial Covid-19 responses now. However, they would do well to realize that more waves of Covid-19 cases may be on the horizon in a fall wave. They should be reexamining their Covid-19 prevention protocols and ensure they have defensible, proactive strategies in place. In particular, they should be scrutinizing their process for managing positive Covid-19 cases in their workplace. This reaction should include a thorough understanding how to monitor employees for symptoms, identify Covid-19 through surveillance testing, and isolating positive cases and their workplace contacts immediately. Technological advances using automated techniques and carefully planned procedures for potential cases will serve them well if future Covid-19 cases infiltrate their workplace.

No company wants the attention of OSHA and the brand destruction concurrent with a fine by this body. The OSHA warpath will only get worse if a Democratic White House comes into power this fall. However, the reason companies should be preparing fully for more Covid-19 cases is to preserve their most important asset: the health and well-being of their employees.



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