By Sharon Stiller, Rachel Gold and Joanna Topping
NYS Change Takes Effect at 8 PM TONIGHT
OSHA offers some guidance
Please note that as of .TONIGHT, WEDNESDAY APRIL 15, 2020, at 8:00 p.m., all New York State employers with staff still working outside the home must provide them with personal protective equipment (“PPE”) free of charge.
In addition to this Governor’s order on PPE, OSHA published guidance Monday to its inspectors that employers should note.
First, please remember that, though you may not be a specifically regulated or regularly inspected business, OSHA has a “General Duty” clause that requires ALL employers to provide a safe workplace; one that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
OSHA will interpret COVID-19 exposure as such a hazard.
And, while Compliance Safety Health Officers (“CSHOs”) have been advised to try to work with businesses, particularly when the employer evidences willingness to comply and rectify, they are nonetheless inspecting and enforcing. OSHA is accepting and investigating complaints submitted by employees and has advised its CSHOs to prioritize COVID-19 related conditions, starting with incidents involving either a death or imminent danger.
Further, OSHA clarified when you must report a COVID-19 workplace incident. Specifically, employers must report to OSHA once the situation hits each of three prongs:
- An employee has tested positive and
- You have determined the infection is “work-related” and
- The case includes at least one recording criteria.
Prongs 2 and 3 refer to the standards that remain unchanged at this time. They are already defined in USDOL regulation. The point worth noting is that the Agency has told its inspectors to take into consideration an employer’s reasonable availability of information and resources. So, while OSHA is responding to complaints and enforcing, it is walking a thin line by trying to work with violators to protect the workers and not just penalize.
If you are contacted by OSHA, DOL, or any regulatory authority, and need guidance, please let us know. We have a team here to advise and help you.
Sharon P. Stiller, Esq.
160 Linden Oaks, Suite E
Rochester, New York 14625
Rachel Demarest Gold, Esq.
3 Dakota Drive, Suite 300
Lake Success, New York 11042
Joanna M. Topping, Esq.
81 Main Street, Suite 306
White Plains, New York 10601