Audit, Compliance and Risk Blog

On February 1, the Occupational Safety and Health Administration (OSHA) issued citations to Amazon company warehouses in three states, continuing investigations into the company’s practices in other states. OSHA is asserting that the company is violating the Employer’s General Duty Clause by failing to protect warehouse workers from low back injuries and other musculoskeletal disorders. Although California enforces specific ergonomics requirements (which I’ve written about HERE), OSHA and other states instead regulate ergonomics violations by targeted industries through their General Duty Clauses. The remainder of this note discusses these recent OSHA efforts to protect warehouse workers.

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After an employer discharges an employee, the (ex) employee may be able to sue claiming that the discharge was unjustified or“wrongful,” depending on the terms of any applicable employment contract andthe circumstances of the discharge. One complicated set of circumstances involve discharges that are “constructive” rather than explicit/actual. Whereas an employer may commit an actual breach by dismissing an employee without cause and without sufficient advance notice or severance pay, a constructive breach occurs when an employer forces the employee to accept a fundamental (or in some formulations, “substantial”) change in the employment relationship or quit.

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On March 26, 2020 the Environmental Protection Agency (EPA) issued a temporary enforcement policy, effective retroactively to March 13 and continuing until repealed or revised. The agency cites the overarching need for public health and safety, and anticipates that “the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results.” In particular, EPA references likely personnel shortages, and proliferating travel and social distancing restrictions. Accordingly, EPA’s new policy sets out conditions under which an entity can reduce or suspend its compliance activities, including monitoring and reporting, for the duration of a period during which “compliance is not reasonably practicable.”

Because the new policy does not provide useful thresholds or criteria for coronavirus-induced impracticality, there’s no realistic way to anticipate its impacts. Regulated entities and their organizations have generally expressed appreciation, while environmental and other organizations that distrust the contemporary EPA have generally expressed outrage. The remainder of this note will summarize the scope and organization of the new policy, leaving the reader to judge how it may be implemented.

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How can employers protect workers against coronavirus exposures? In expanding parts of the country, most employers do so by complying with applicable Shelter in Place orders. Workplaces still in operation face more complicated occupational health situations. 

The Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC; directly and through its subsidiary National Institute for Occupational Safety and Health (NIOSH)) and other occupational health agencies issue guidelines for workplace safety, which can be used in locations that are still open. (This approach is typical; I wrote about their Zika Virus guidelines HERE). In addition, the Equal Employment Opportunity Commission (EEOC) provides interpretive guidance on how to apply disabilities and anti-discrimination laws to the design and implementation of protective programs.

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