Multistate Employer Liability & Employee Welfare in the Absence of a Federal COVID-19 Health & Safety Rule
By: Christian D. Petrangelo | Attorney, Regulatory Compliance Specialist on Facebook’s Global Environmental, Health, and Safety team, via Milestone Technologies, Inc.
January 14, 2021
The “unprecedented” year of 2020—the year that COVID-19 took over the world—challenged society in ways not seen in many people’s lifetimes. In the United States, the federal government’s tepid and chaotic response failed to “flatten the curve” of the virus. Just one example is the federal Occupational Safety and Health Administration’s (OSHA’s) reluctance to issue a rule governing employer responses to COVID-19 to protect all workers in the American workplace.
A Patchwork Approach to Addressing COVID-19 in the Workplace
In the absence of federal regulation, some states—including California, Virginia, and Oregon—have begun filling in the gap via COVID-19 workplace emergency temporary standards (ETS). While the content of these state rules varies, employers may be required to conduct workplace exposure assessments, notify infected employees and others in proximity, allow employees to access their own medical records, create return-to-work procedures, enforce social distancing, and conduct sanitation and disinfection of the workplace. A separate section of Virginia’s ETS contains requirements for hazards or job tasks considered “medium,” “high,” or “very high” exposure risks.
For larger companies operating in both ETS and non-ETS states, this patchwork of state requirements presents a potential compliance problem, as well as a legitimate health and safety issue for employees. In the absence of a federal standard, could OSHA attempt to use an employer’s compliance with a state ETS to impute knowledge of a recognized COVID hazard in non-ETS states, through the General Duty Clause (GDC)? To consider this question, we must take a closer look at the GDC.
The General Duty Clause & Employer Hazard Recognition
OSHA’s GDC states: “(a) Each employer – (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . .” The GDC is effectively a back-pocket enforcement mechanism for OSHA to use where no specific standard applies to the hazard or situation in question.
To prove a GDC violation, OSHA must show that: “(1) a condition or activity in the workplace presented a hazard, (2) the employer or its industry recognized the hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.” The agency also must establish that the employer knew, or could have known based on reasonable diligence, of the hazardous condition.
So what constitutes a “recognized hazard”? The Occupational Safety and Health Review Commission (OSHRC) found that “[a] hazard is deemed ‘recognized’ when the potential danger of a condition or activity is either actually known to the particular employer or generally known in the industry.” The OSHA Field Operations Manual elaborates that a hazard may be recognized on the basis of employer, industry, or “common-sense” recognition. Of these, employer recognition is the most likely to impact the question at hand.
U.S. circuit courts and the OSHRC have weighed in on employer recognition. For example, the U.S. Court of Appeals for the Ninth Circuit found employer recognition where the employer had actual knowledge of a hazardous condition. The Fifth Circuit held that employer recognition may be found “absent direct evidence of subjective belief” where the hazard is “obvious and glaring.” Perhaps most importantly, the Sixth Circuit found that evidence of employer safety efforts is relevant to the question of hazard recognition. However, the OSHRC “has been reluctant to rely solely on an employer’s safety precautions to find hazard recognition absent other ‘independent evidence.’”
On employer safety efforts, OSHA may reference the following documents as evidence of employer recognition of a particular hazard: work rules, company safety programs/policies, handbooks, memoranda, standard operating procedures, operations manuals, collective bargaining agreements and contracts, Job Safety Analysis forms, safety audits, actual prior incidents, near misses known to the employer, injury and illness reports, or workers’ compensation data. In addition, the OSHA Field Operations Manual states that compliance officers may look to prior federal or state OSHA inspection history involving the same hazard.
Multistate Employer COVID Liability on the Cusp of the Biden Era
This high-level overview of current rules and precedent suggests that OSHA, via the GDC, could point to an employer’s safety policies implementing a state COVID ETS to impute knowledge of COVID hazards in non-ETS states. In particular, if a multistate employer has company work rules, safety procedures, and/or standard operating procedures addressing a state COVID ETS, then the employer could be obligated to protect employees in non-ETS states at a similar level. These preexisting rules, policies, and procedures could also be considered a feasible and effective means of abating COVID-related harm.
The question could then become whether “independent evidence,” such as managerial testimony, would be needed to corroborate this safety-policy evidence. In the event that federal OSHA or an equivalent state agency has conducted an inspection of the company’s premises in which COVID was discovered to be a hazard, this could also impute the necessary knowledge to the employer.
Therefore, large employers operating in both COVID-ETS states and other states should take the utmost precaution and aim to protect all of their employees at the more stringent state-ETS level to minimize liabilities. This confusing state patchwork of compliance requirements may not be around for long, of course. With a Biden administration poised to assume control of the federal government, an overarching OSHA COVID standard may be here sooner than we think.
 While OSHA has not conducted any formal rulemakings on COVID-19, the agency has issued guidance documents clarifying how employers should handle the pandemic under current rules. See, e.g., Lee Anne Jillings & Patrick J. Kapust, Occupational Safety & Health Admin., Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (2020) (clarifying that COVID-19 is a recordable illness under 29 CFR Part 1904), https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
 Cal. Code Regs. tit. 8, § 3205–3205.4 (2020), https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Emergency-apprvdtxt.pdf.
 16 Va. Admin. Code § 25-220 (2020), https://www.doli.virginia.gov/wp-content/uploads/2020/07/COVID-19-Emergency-Temporary-Standard-FOR-PUBLIC-DISTRIBUTION-FINAL-7.17.2020.pdf.
 Or. Admin. R. 437-001-0744 (2020), https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf.
 16 Va. Admin. Code § 25-220-40 (2020) (using Virginia as an example).
 16 Va. Admin. Code § 25-220-50–80 (2020). These heightened requirements address engineering controls, administrative and work practice controls, personal protective equipment (PPE), employee training, and infectious disease preparedness and response plans.
 Occupational Safety and Health Act of 1970 §5(a)(1), 29 U.S.C. § 654(a)(1), https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=3359&p_table=OSHACT.
 Occupational Safety & Health Admin., CPL-02-00-160, Field Operations Manual (FOM) (2016), at 4-16–4-17, https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-00-160_2.pdf.
 MPS Products Corp., No. 17-0372 (OSHRC Oct. 13, 2020), at 31, https://www.oshrc.gov/assets/1/18/17-0372_Decision_and_Order_DATED.pdf?11392 (emphasis added); Kimberly Stille, Occupational Safety & Health Admin., Enforcement Policy for Respiratory Hazards Not Covered by OSHA Permissible Exposure Limits (2018), https://www.osha.gov/laws-regs/standardinterpretations/2018-11-02; Field Operations Manual, supra note 8, at 4-10.
 OSHA has the burden of proving a “recognized hazard.” Adele L. Abrams, OSHA’s General Duty Clause: A Guide to Enforcement and Legal Defenses 3, https://www.assp.org/docs/default-source/standards-documents/osha’s-general-duty-clause—abrams.pdf?sfvrsn=89cdb147_2.
 Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2003, 1995-97 CCH OSHD ¶ 31,301, p. 44,014 (No. 89-0265, 1997).
 Field Operations Manual, supra note 8, at 4-12.
 Under industry recognition, OSHA has stated that state and local laws and regulations can be used to impute knowledge; however, the agency specified that these rules must “apply in the jurisdiction where the violation is alleged to have occurred,” which would not address the situation of multistate employers operating in ETS and non-ETS states. Field Operations Manual, supra note 8, at 4-13.
 Magma Copper Co. v. Marshall, 608 F.2d 373, 376 (9th Cir. 1979).
 Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 (5th Cir. 1984) (quoting Tri-State Roofing v. OSHRC, 685 F.2d 878, 880–81 (4th Cir. 1982)).
 Duriron Co. v. Secretary, 750 F.2d 28, 30 (6th Cir. 1984).
 Mid South Waffles, Inc., d/b/a Waffle House #1283, No. 13-1022 (OSHRC Feb. 15, 2019), at 8 (quoting Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2007 (No. 89-0265, 1997)), https://www.oshrc.gov/assets/1/18/Mid_South_Waffles%5E13-1022%5EDecision_(Assembled)%5E021519%5EFINAL.pdf?8299.
 Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No. 03-1344, 2007).
 Puffer’s Hardware, Inc. v. Donovan, 742 F.2d 12, 18 (1st Cir. 1984).
 Abrams, supra note 10.
 Field Operations Manual, supra note 8, at 4-12.
Christian is an attorney and regulatory compliance specialist on Facebook’s Global Environmental, Health, and Safety team, via Milestone Technologies, Inc. Christian proudly served as Senior Managing Editor of the Vermont Law Review for Volume 36 (2011–2012). He holds a J.D. from VLS (2012) and a Master’s in Environmental Policy & Regulation from the London School of Economics (2009).