Article contributed by Lois Traub, Esq., Ellenoff Grossman & Schole LLP
Since the start of the pandemic in February 2020, 14,427 COVID-19-related complaints have been filed with the United States Occupational Safety and Health Administration (“OSHA”) and 49,483 complaints have been filed with similar state agencies that also enforce health and safety regulations. Ranked by industry, restaurants received the third highest number of complaints, after healthcare and retail, despite being closed for a substantial period of time during the pandemic.
As of December 31, 2020, OSHA announced that it had issued citations and assessed penalties in the total amount of $3,930,381 for COVID-19 violations, such as failure to provide training on the proper use of personal protective equipment, failure to report an injury, illness and fatality and failure to record an injury or illness on OSHA recordkeeping forms. As of January 2021, OSHA penalties have increased to $13,653 per violation which can be assessed daily if unabated. OSHA can also penalize restaurants in the amount of $136,532 for willful and repeated violations. Unfortunately, OSHA recently added guidance that directly affects the hospitality industry and which restaurants are urged to comply with to avoid costly consequences, both financially and to their reputation.
On April 20, 2021, OSHA issued new guidelines mandating that employers who require their employees to receive a COVID-19 vaccine for work-related reasons record any adverse reactions on an OSHA 300 log, which is a form for employers to record all injuries and illnesses that occur in the workplace. An adverse reaction to the vaccine must be recorded if:
- The employee had not previously experienced COVID-19 symptoms affecting the same body part, or, had previously recovered completely from COVID-19 and the vaccine caused the symptoms to reappear; and
- The employee sought medical treatment (other than first aid), or, was absent from work for one or more days after the illness began.
The employer must record the date when the illness occurred, the nature of the illness, and the name of the affected employee. OSHA 300 logs should be maintained by the business for five years. Failure to maintain and present the log can result in a fine of up to $8,000 for each year of a violation.
If an employer merely recommends, but does not mandate that its employees be vaccinated and there are no consequences for refusing vaccination, the recordkeeping requirements do not apply, even if the employer makes arrangements for the employees to receive the vaccine offsite or makes the vaccine available at work. However, employers will be responsible for recording general cases of COVID-19 (not related to adverse reactions to the vaccine), on OSHA 300 logs, if all of the following are true:
- The case is a confirmed case of COVID-19; and
- The case is work-related (in that it arises from events or exposures in the work environment); and
- The worker sought medical treatment and/or leave from work as a result.
All OSHA COVID-19 guidelines are also still in effect whether or not employees have been vaccinated. Staff and customers must continue to wear face coverings, the restaurant must follow social distancing requirements for table placement, and takeout lines, PPE should be readily accessible and employees should be trained on correct usage, touchless hand sanitizers should be provided, and workers should be allowed ample time to wash their hands. The restaurant must hang posters encouraging physical distancing and hand sanitization in workplace areas where they are likely to be seen by workers. Other OSHA regulations that apply to restaurants must still be followed including maintaining restrooms accessible to guests and workers, including delivery workers, in a sanitary condition with hot and cold running water, individual towels or hand blowers, safety training for hazardous chemicals including cleaning solutions, and maintenance of material data safety data sheets and blood borne pathogen regulations as well as fire safety plans and training.
Complaints are expected to increase with rising COVID-19 cases during this current fourth wave. OSHA complaints are public records and are available through Freedom of Information Act requests to your customers and the media alike. An OSHA inspector may visit and inspect your business, and if a violation is found, impose a fine or order you to correct a violation by a specific deadline. OSHA violations are expensive and can be potentially damaging to the restaurant’s reputation. It is also important to know that anyone can file a complaint with OSHA, and complaints are generally filed anonymously. Once received, the complaint must be posted at or near the place where each purported violation occurred, such as the rest room or dining area for at least three days and thus, may be visible to your employees and clientele. OSHA also posts its citations on dol.gov/newsroom, a government website available to the general public.
Failure to follow OSHA regulations and guidelines can have economic consequences for your restaurant. Be vigilant and prepared so when the agency comes knocking so you can avoid a potential citation and become OSHA’s next victim.
Lois Traub, Esq. is of Counsel in the Labor & Employment practice group of Ellenoff Grossman & Schole LLP. Lois advises clients in the hospitality industry on all aspects of labor and employment law, including OSHA compliance. Ms. Traub has represented employers in labor arbitrations, negotiated and drafted labor contracts, employment and separation agreements, and personnel policies and advised clients on state and federal labor law compliance. Lois Traub can be reached at LTraub@egsllp.com or via phone at 212-370-1300.
