As of Wednesday, April 15th at 8:00 pm PPE is now required in New York. 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. Our partners at Abrams, Fensterman, Fensertman, Eisman, Formato, Ferarra, Wolf & Carone, LLP shared the following:
First, remember that, though you may not be a specifically regulated or regularly inspected business, OSHA has a “General Duty” clause. This clause 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 exposures as such a hazards.
And, while Compliance Safety Health Officers (“CSHO’s”) have been advised to try and 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 CSHO’s 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 it’s 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, The Flanders Group has partnered with the law firm of Abrams, Fensterman, Fensertman, Eisman, Formato, Ferarra, Wolf & Carone, LLP as a resource to contract with. You can visit their website at www.abramslaw.com or contact any of these attorneys who specialize in this area:
Sharon P. Stiller, Esq. 585-218-9999 firstname.lastname@example.org
Rachel Demarest Gold, Esq. 203-328-2300 email@example.com
Joanna M. Topping, Esq. 914-607-7010 firstname.lastname@example.org