Restaurants Are Now OSHA targets

Restaurants are facing a range of challenges in the months ahead — and one of them could be a surprise visit from OSHA.

Hard times

The pandemic has been devastating for the restaurant industry as a whole. According to the National Restaurant Association, more than 110,000 restaurants and bars closed — temporarily or permanently — in 2020, with nearly 2.5 million jobs lost. Even those establishments that quickly figured out how to do outdoor dining and pick-up/delivery services are feeling squeezed.

While the federal Paycheck Protection Program and the Restaurant Revitalization Fund grant program have helped many restaurant owners stay marginally afloat, it’s hard times for pretty much everyone in the hospitality industry. Many restaurant owners have lost key staff and failed to pay their rent. For example, in New York City, a survey by the NYC Hospitality Alliance reported that over 90 percent of restaurants could not afford to pay their total rent in December 2020. That percentage has been steadily increasing since the Alliance began tracking rent delinquency last summer.

So on top of everything else, in March 2021, OSHA made restaurants a target industry in the COVID-19 National Emphasis Program (NEP). As a target of a NEP, all of OSHA’s regional offices will make restaurants one of the possible targets for site visits in the coming months. Other industries that OSHA has identified as having “higher rates of exposure and illness” include meat-processing facilities, grocery stores, temporary help services, and several others. The full list of OSHA’s primary targets can be found in Appendix A and B of the NEP.

Operating without rules

Remember that without an emergency temporary standard (ETS) about infectious disease and workplace safety, it’s difficult for OSHA to require employers to implement much of anything. They can only “recommend.” Most insiders believe that an ETS is still on the way, and many believe that the temporary rule will mandate precautions that will be controversial to implement and enforce. We’ll see.

All this federal activity is also coming at a time when most states are relaxing restrictions. In New Hampshire, where I live, most restrictions on businesses were lifted on May 8, 2021. Governor Chris Sununu approved new Universal Best Practices for “individuals, businesses, and organizations to consider implementing.” In New Hampshire, as in many other states, businesses can continue to require masks and enforce basic social distancing rules — or not.

On May 13, 2021, the Centers for Disease Control and Prevention (CDC) announced that people who are fully vaccinated can go without masks or physical distancing in most cases, even when indoors and in large groups. This is a major shift in policy, and it remains to be seen how this new recommendation will affect the full re-opening of our communities. It’s definitely good news!

The employer’s decision

For the most part, restaurants have already embraced basic universal precautions. Employees are used to wearing masks and checking their temperatures. Hand washing is more routinized than ever. Surfaces are automatically sanitized after use. As restaurants increase capacity, it isn’t employee behavior and sanitizing practices that worry employers. It’s customers.

One of the consequences of lifting all restrictions — and making precautionary measures optional — is that each restaurant owner must now decide what the rules will be for their employees and customers. Employers are required by law to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” (I.e., the General Duty Clause of the Occupational Health and Safety Act), but employers can only control so much. Restaurant owners can require that employees adhere to basic precautions as a condition of employment. It’s more challenging to influence customer behavior.

Usually, it’s wisest to recommend, not mandate.

Preparing for an OSHA visit

OSHA prioritizes site visits based on various factors, including illness and injury reports (Form 300, 300A, and 301), whistleblower complaints, and referrals from other agencies. The best way to prepare for a visit is to review OSHA’s latest workplace guidance posted on January 29, 2021. Make sure you are compliant.

• Injury and Illness records must be up to date (OSHA 300, 300A, and 301 forms)
• Have a documented COVID-19 response plan in place, including relevant federal, state, and local guidance.
• Be able to demonstrate compliance with OSHA’s latest guidance
• Be able to demonstrate employee training about COVID-19 hazards, symptoms, and prevention.
• Document any contact tracing

As is true for any OSHA visit, other existing standards may come into play during a walk-around inspection — particularly those involving respiratory protection, sanitation, and recordkeeping. Be wary of the concept of “plain view,” if the Compliance Officer can see a violation during the walkaround, OSHA can cite you. In the instructions to OSHA’s regional offices, compliance officers are told to conduct all COVID-19 inspections “in a manner to achieve expeditious issuance of… citations and abatements.” This means that citations will be issued quickly.

Under normal circumstances, OSHA may take up to six months to issue a citation after observing a violation. By instructing compliance officers to act more quickly, OSHA hopes that violations will be addressed sooner rather than later.

Employers are contesting COVID-related citations

Employers are contesting COVID-related citations at an unprecedented rate. Typically, only eight percent of employers contest an OSHA citation. According to OSHA’s enforcement data, over 40 percent of employers cited for COVID-related infractions are in the process of contesting them — and for good reasons.

Most of the citations issued to date (80 percent) concern respiratory protection. The next largest category (17 percent) involves recordkeeping — not listing a work-related illness or death in the illness and injury logs (300, 300A, and 301 forms). Less than 1 percent of the citations evoked the General Duty Clause.

Some employers are contesting because they believe OSHA has applied pre-pandemic standards in unusual ways. There is confusion about how standards relating to respiratory protection, sanitation, personal protective equipment, and recordkeeping are being interpreted and applied. Employers are using the “fair notice” defense to counter these novel interpretations.

Recordkeeping citations, in particular, are ripe for a challenge because of the impossibility of determining the “work-related” instance(s) of COVID-19 exposure that leads to infection. When OSHA cites an employer for failure to record and report work-related COVID-19 cases, the agency is essentially asking an employer to prove that the employee picked up the virus elsewhere. Proving a transmission source is impossible. Creating reasonable doubt about “work-relatedness” is not.

 Workers compensation and civil liability

Another good reason to appeal a COVID-related citation is that employers could become vulnerable to civil liability complaints in the future by agreeing to a violation. An employee can’t sue their direct employer for a work-related illness in most states because costs are paid through workers’ compensation insurance programs. That isn’t happening with COVID-19, however. Insurers are approving only a few COVID-related workers’ compensation claims. Why?

Generally, workers’ compensation doesn’t cover common, community-spread illnesses like the flu because such diseases can’t be directly tied to the workplace. Some states have made exceptions — like for firefighters who develop lung and respiratory illnesses that are presumed to be work-related — but none of these policy exceptions could be interpreted as including COVID-19 infections.

Many states, New Hampshire among them, have extended workers’ compensation coverage to include first responders and healthcare workers who are impacted by COVID-19, but not for any other category of frontline workers. What’s uniquely challenging for insurers is that many jobs not considered hazardous under ‘normal” circumstances — grocery store workers, transit operators, and restaurant employees among them — are now seen as hazardous because there is a high risk for exposure at work.

If policies should change so that all COVID-19 infections are presumed to be work-related and therefore covered under workers’ compensation, both insurers and employers have expressed concerns about cost. Undoubtedly, any expansive “work-related presumption” policy would significantly increase insurance costs at a time when businesses are already facing significant financial challenges.

Questions?

Restaurants should be on the alert for an OSHA inspection during the next few months. If you have any questions about compliance — or if you’ve received a COVID-related citation — please feel free to get in touch to review your situation and discuss options.

About the Author: James Laboe

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