Loren Kean Law

Loren Kean Law

Loren Kean Law

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SAFE WORKPLACE REQUIREMENTS UNDER OSHA DURING THE PANDEMIC Kyle W. Ohlenschlaeger and Bruce E. Loren | Apr 20 2020

Aside from the CDC guidelines and state and local emergency orders, the careful contractor always has to comply with federal OSHA requirements to keep a safe workplace during the Covid-19 pandemic. As you know, OSHA violations can result in hefty fines, higher insurance premiums and disqualification under some bid requirements. Be diligent against claims of disgruntled employees or inspectors unexpectedly appearing at your project.

What are some of the OSHA requirements that may apply to prevent occupational exposure to the virus?

  • OSHA's Personal Protective Equipment standards require using gloves, eye and face protection, and respiratory protection when job hazards warrant it. When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program.
  • The General Duty Clause requires employers to furnish to each worker "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.

What guidance has OSHA provided to OSHA investigators for handling Covid-19 complaints?

OSHA's Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) provides instructions and guidance to compliance safety and health inspectors for handling COVID-19-related complaints. Inspectors should assess whether the employer is making a good-faith effort to provide and ensure workers use the most appropriate respiratory protection available for exposure

Using homemade masks or improvised mouth and nose covers is a last resort (i.e., when no respirators or facemasks are available). Improvised masks are not personal protective equipment and, ideally, should be used with a face shield to cover the front and sides of the face.

OSHA recognizes that employers in many sectors may experience challenges in complying with certain provisions of the agency's standards as a result of the COVID-19 pandemic, including where those standards require the use of certain types of PPE (e.g., respirators) or training to workers. Accordingly, OSHA is providing enforcement flexibilities for specific provisions of certain standards and requirements to address these challenges and help ensure the continued protection of worker safety and health.

Practical suggestions for the contractor.

We provided list of safety procedures that a Contractor should be using in our last newsletter. COVID-19: WORKPLACE SAFETY AND OSHA REPORTING.

In addition, the following practical suggestions might be useful:

  • The use of a mask should be strictly enforced by the Contractor. This includes people in the same vehicle. Violations of this rule should be enforced as any other company policy violation, including appropriate level of discipline and even termination, for repeat offenders.
  • It is permissible to check the temperature of all employees on the jobsite at least once per day and to inquire if they have any Covid-19 symptoms. Remember to keep all medical information confidential. If there is any doubt as to the employee’s health, send the employee home.
  • The Company’s safety officer should be conducting training sessions of safe health practices and visiting projects to respond to questions and check for compliance. Keep a six-foot space between employees during the training sessions. The officer should keep a written log of all training and on-site inspections. The officer should often ask the employee if all safety procedures are being following, including practices of other trades. Remember, that an employer should not retaliate against any employee for making a complaint.
  • A common problem is that the general contractor or another trade is failing to impose good safety practices. For the protection of your company and your employees, you should notify the general contractor of the violation and request that safety procedures be followed by every person on the jobsite. If the failures continue, you have to decide whether, and to what extent, the failures place your company or your employees at risk.
  • Don’t forget to record everything the Company does in writing. When we defend against OSHA violations on behalf of the Contractor, the failure of the Contractor to have records of their actions, training, inspections, and employee disciplines typically results in our inability to negotiate a lesser penalty or decreased classification of the violation.

We will continue to share information as it becomes available and do our best to keep you informed about any further actions necessary as it relates to your open projects.

Bruce E. Loren and Kyle W. Ohlenschlaeger of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, employment law, and complex commercial litigation. Mr. Ohlenschlaeger focuses his practice on construction law and a wide range of commercial litigation disputes. Mr. Loren has achieved the title of “Certified in Construction Law” by the Florida Bar, exemplifying the Bar’s recognition of this expertise. The firm’s construction clients include owners/developers, general contractors, specialty contractors in every trade, suppliers and professional architects and engineers. Mr. Loren and Mr. Ohlenschlaeger can be reached at bloren@lorenkeanlaw.com or kohlenschlaeger@lorenkeanlaw.com or 561-615-5701.