DOSH Is Actively Citing Employers For COVID-19 Concerns
The 2019 novel coronavirus disease (“COVID-19”) is wreaking havoc on not only the world but our workplaces. Employers are struggling to keep up with constantly changing guidelines and recommendations as we move through these unchartered waters. However, ignorance is no excuse for DOSH enforcers who are out in full swing citing employers for “violations” as they relate to COVID-19.
DOSH’s regulations require protection for workers exposed to airborne infectious diseases such as COVID-19. For most California workplaces DOSH is taking the position that an update to the Company’s Illness Injury Prevention Plan (“IIPP”) is mandatory since COVID-19 is widespread in the community. The following link has the voluminous list of expectations DOSH published for employers to implement into their IIPP in order to be complaint. Here. The expectation of this update is that the employers assess the risk of COVID-19 in its workplace, then prepare a plan. Failure to have a written COVID-19 Prevention and Preparedness plan will result in a citation from DOSH.
However, it is not enough to have a written plan, employers must also implement the plan. DOSH is issuing serious citations to employers who are not following COVID-19 guidelines for the health and safety of their workers. COVID-19 guidelines can include face masks, social distancing, shared workspaces, good sanitation practices, etc. Therefore, employers must be diligent about preparing and following a COVID-19 plan. Many DOSH complaints come from the employees themselves who may feel like his or her employer is not taking their safety seriously.
For our agricultural workers, DOSH is also focusing on the shade requirement as it relates to Heat Illness Prevention Plans (HIPP) and social distancing. If an employer does not have enough shade to allow employees to socially distance, then the employer will receive a citation. Do not dismiss this as a concern if your employees do not use the available shade, such as those who go sit in their car on break. DOSH does not consider this “shade” unless the car is running and the A/C is on. Therefore, the employer is still required to “provide” enough shade for all employees, whether they use it or not.
These citations are a clear over-reach by DOSH. However, they are out in full force writing the citations. Though there is a strong legal argument that these citations are appealable, this is a costly option for employers. Our best advice is to comply as it relates to these rules and avoid getting a citation in the first place.
A final issue we have become aware of is that DOSH has taken the position that employers should be providing face coverings or reimbursing employees for the ones that they bring. The prior counsel was that face coverings were not personal protective equipment (i.e. they did not protect the employee but others) and were required to be worn by all, thus it was not an item the employer was required to provide and/or reimburse. The notice can be found here. No other mention of this requirement could be found on DOSH’s website. If you have any questions or need assistance in preparing your COVID-19 Prevention and Preparedness plan, do not hesitate to contact the experts at McKague Rosasco, LLP.
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