And , at least at the federal level , it doesn ’ t look like a COVID standard is forthcoming . In June , the U . S . Court of Appeals for the D . C . Circuit rejected a bid by the AFL-CIO to force OSHA to create an emergency novel coronavirus safety standard in response to the pandemic . At the state level , Virginia has an emergency COVID-19 standard , and Oregon has issued temporary standards .
States like Michigan , said attorney Phillip Russell with Ogletree , Deakins , Nash , Smoak , & Stewart in Tampa , Florida , are handing out citations because they might believe federal OSHA has not been as aggressive as they should be in acting on violations and in developing a standard .
The problem with coming up with a safety standard specific to COVID-19 , however , is that it would be like “ trying to hit a moving target ” since the advice coming from health agencies like the Centers for Disease Control and Prevention ( CDC ) is still evolving , Russell said .
“ How do you write a standard and describe what an employer should be doing such that that standard could be enforced with regulatory legal authority ?” he asked . “ I think it ’ s an incredibly difficult , if not impossible , task .” he said will be the commissions or boards that review contested citations .
And while it is true that OSHA has issued relatively few citations related to COVID-19 thus far , Russell has a reminder : The agency has six months from the first exposure to a hazard to issue a citation , so some employers are not out of the woods yet just because they haven ’ t heard from OSHA about a violation or inspection performed earlier this year .
His best advice to employers ?
Employers might not be able to do everything that the CDC recommends , he said , but they should at least pick some recommendations — such as social distancing , facial covering mandates , staggering schedules and providing handwashing stations — and follow them .
“ The employers that are doing nothing and essentially thumbing their noses at the CDC and health agencies are the ones that will get in the most trouble ,” he said . “ A cavalier attitude toward this , even if you don ’ t believe the threat is as high as the government says it is , could get you in regulatory hot water .”
Other issues facing officials as they try to determine if a citation is warranted , Russell said , is that citations under the general duty clause also rely on CDC guidance . In the case of a COVID-19 infection , the issuing agency must also be able to prove that the employee was exposed at work .
The ultimate decisionmakers as to whether state agencies or federal OSHA “ got it right ,”
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