States Ramp up Enforcement of COVID-19 Regulations

States Ramp up Enforcement of COVID-19 Regulations

  • At least seventeen states have COVID-19 training orders in place
  • Virginia seeks to ramp up enforcement of its Emergency Temporary Standard
  • Michigan has begun issuing citations to employers failing to comply with COVID-19 regulations
  • California and Rhode Island have begun sending letters of non-compliance to employers violating safety protocol

As of November 2, 2020, at least seventeen states have a regulation or recommendation that employers conduct training for some or all of their workforce on COVID-19 protocol. Additionally, the federal Occupational Safety and Health Administration (“OSHA”) has issued guidance on preparing the workplace for COVID-19. The majority of the training requirements have been issued as part of state governor-issued executive orders related to the COVID-19 pandemic, or as part of state re-opening initiatives.  Among the mandates, enumerated penalties remain unclear in the vast majority of states with requirements, but of note is Virginia (up to $130,000 fine), where state authorities have begun widespread enforcement of violations of that state’s COVID-19 protocol.

With the increasing number of COVID-19 cases in the vast majority of states, and the likelihood that these increases will sustain throughout the winter months, a number of states have begun ramping up efforts to enforce the COVID-19 safety rules, regulations and orders that were enacted during the summer as part of an effort to re-open the economy. With safety and containment now being the number one priority, we focus on a number of efforts made by various states to enforce their COVID-19 safety rules.  

Virginia Looks to Hire 100 Employees to Enforce COVID-19 Regulations

According to the Washington Business Journal, the Virginia Department of Health is hiring up to 100 temporary employees who will be tasked with responding to complaints about violations of COVID-19 regulations. While most of the 23,500 complaints in the Washington Business Journal  concern violations of the state mask mandate, among the likely results of the investigation are violations of Virginia’s “Emergency Temporary Standard,” which requires employers to conduct mandatory training in medium and high-risk businesses. 

Virginia is one of the few states that enumerates a penalty for non-compliance with its COVID-19 safety rules. While many of the states that enacted orders fail to state a penalty for non-compliance, Virginia made it clear that violations of the Emergency Temporary Standard can result in fines of up to $130,000. This means that employers operating in Virginia need to be extra-vigilant in compliance with all aspects of the Emergency Temporary Standard, including (but not limited to) the training requirements contained therein. 

California OSHA Sends over 5,800 Non-Compliance Letters to Businesses Within the State

As of October 28, 2020, nonprofit newsroom CalMatters reported that California OSHA had issued over 5800 letters to employers accused of failing to keep employees safe from COVID-19. While the agency has been vigilant in its letter-mailing campaign, CalMatters also reports that an inspector was sent to the alleged violating site “less than 5% of the time.” Nevertheless, the recent increase in investigation attempts begun by the letter-writing campaign show an increase in enforcement efforts within the understaffed California agency. Since California also has a training mandate related to its COVID-19 protocol (and overall emergency plan efforts), employers would be wise to complete their training obligation as enforcement efforts appear to be ramping up.

Michigan Issues Citations to Businesses Failing to Keep Employees Safe from COVID-19

According to the state website Michigan.gov, as of August 21, 2020, Michigan has begun issuing the first round of $7,000 citations to those businesses who have violated the state’s COVID-19 safety protocols. Among these include violations of the Michigan Occupational Health and Safety Administration (“MIOSHA”) COVID-19 protocol “general duty” clause. Such violations include the failure to maintain a workplace “free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee.” In addition to the fines, the state published the name and incident(s) on its website, and clearly indicated that the employers who received citations failed “to take appropriate steps to protect employees and their communities from the spread of COVID-19.” 

It is important to note that Michigan’s Executive Order No. 2020-91, which created many of the COVID-19 safety obligations (including the training requirement) for employers, fails to list any defined penalty for failing to comply with the training obligation. That said, Michigan Governor Whitmer is clearly taking the enforcement of the overall safety protocol seriously, and employers operating within that state would be wise to ensure that they are up to date on their training obligation so as to avoid public shame, humiliation, and the possibility of a fine due to a violation of the “General Duty” clause stemming from the failure to conduct mandatory COVID-19 safety training. 

Rhode Island Issues a Number of Compliance Orders to Businesses Failing to Meet COVID-19 Safety Regulations

During the COVID-19 pandemic, Rhode Island enacted Emergency Rule 216-RICR-50-15-7 which requires training on key elements of the Emergency Rule, and an overall effort to keep businesses safe from the spread of COVID-19. The Rhode Island Department of Business Regulation has recently begun displaying a list of compliance orders issued to businesses who, following an investigation, have failed to comply with elements of the Emergency Rule. While at this time the orders only require that the businesses make up the deficiency, it is easy to see a scenario wherein the State issues a regulation promulgating a penalty for those employers who fail to do so. Therefore, it is extremely important to employers operating within Rhode Island to comply with their training obligation as soon as possible. 

Given the COVID-19 pandemic is only showing signs of spiraling out of control as we head into a long winter, it would certainly benefit businesses of all kinds to take extraordinary measures to keep their employees safe and healthy. Syntrio has developed a variety of COVID-19 resources (including a full-scale training course that meets the requirements of sixteen of the seventeen states currently requiring training, North Carolina excepted due to the structure of its requirements) aimed at keeping your business open and your workforce safe and healthy. We invite you to discuss training options with us at your convenience. 

Since 2007, Jonathan has practiced labor and employment law, with a focus on litigation, individual plaintiff and class action discrimination, harassment, and other employment-specific cases as well as focusing his practice toward advising employers on preventive practice. Jonathan has presented over 100 live employment discrimination and harassment prevention training courses across all 50 states.

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