July 21, 2020
The U.S. Department of Labor’s federally and state-administered Occupational Safety and Health Administration (OSHA) programs across the country receive complaints every day related to COVID-19. OSHA tracks all valid complaints and referrals received since February 1, 2020, with the N-16-COVID-19 additional code, and reports the data daily online at https://www.osha.gov/enforcement/covid-19-data. As of July 16, 2020, federal OSHA programs reported receipt of 6, 832 complaints and the state OSHA programs reported 17, 013 complaints related to COVID-19. Employers from all industries are confronting a variety of allegations, including, but not limited to, assertions of inadequate personal protective equipment, improper response planning, and non-compliance with guidelines provided by the Centers for Disease Control and Prevention (CDC) and local public health authorities, such as the South Carolina Department of Health and Environmental Control (DHEC). Inquiring minds want to know: who is filing these complaints?
Selected Essential Industries Data
OSHA’s COVID-19 data provides a glimpse into how the pandemic has impacted the critical infrastructure workers based upon the number of complaints filed with the federal programs. OSHA’s data refers to a six-digit hierarchical classification code in the North American Industry Classification System (NAICS) for each industry. The NAICS, developed in cooperation with Mexico and Canada in 1997, uses a production-oriented conceptual framework to group establishments into industries based on the activity in which they are primarily engaged. Businesses performing similar functions in similar ways are classified together. Five sectors are mainly goods-producing sectors and fifteen are entirely services-providing sectors.
Healthcare, which includes establishments in NAICS 621 (Ambulatory Health Care Services), 622 (Hospitals), and 623 (Nursing and Residential Care Facilities), has given rise to 1,840 COVID-19-related complaints within the federal program alone through July 16, 2020. The NAICS coding system provides greater detailed information to be extracted about the source of these complaints. For example, of the 1,840 complaints submitted from the Healthcare industry to the federal OSHA programs, 576 originated from General Medical & Surgical Hospitals (NAICS 622110) and 323 originated from Nursing and Residential Care Facilities (NAICS 623110). Home Health Care (NAICS 621610) gave rise to 59 complaints. Offices of Physicians (Except Mental Health Specialists) (NAICS 621111) are the subject of 154 complaints. Residential Mental Health & Substance Abuse Facilities (623220) generated 51 complaints.
The federal OSHA programs reported 774 complaints received from the Retail Trade industry. Retail Trade includes establishments in NAICS 44-45. Grocery Stores, which reported 114 complaints to the federal OSHA programs, is a subset of Retail and includes NAICS 445110 (Supermarkets and Other Grocery (except Convenience) Stores).
Restaurants and Other Eating Places, including establishments in NAICS 7225, reported 294 complaints to the federal OSHA programs. By comparison, Construction, including establishments in NAICS 23, reported 211 complaints and General Warehousing and Storage, including establishments in NAICS 493110, reported 130 complaints.
The Postal Service (NAICS 491110) reported 341 COVID-19 related complaints by July 16, 2020, whereas Couriers and Express Delivery Service (NAICS 492110) created 83 reports. During that same time frame, the Automotive Repair industry, including establishments in NAICS 8111, generated 45 complaints within OSHA’s federally-administered programs.
OSHA’s data summary also provides insight into reporting trends by region. OSHA Region 4, comprised of Alabama, Georgia, Florida, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee, reported 1,386 complaints through July 16, 2020. Only Region 5, comprised of Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin, reported more with 1,552 complaints.
South Carolina employers, particularly those in the healthcare industry, should not be surprised if they receive notification that a COVID-19 related complaint has been filed with OSHA. OSHA data indicates that Region 4 and the healthcare industry have a high volume of complaints in relationship to all ten OSHA regions. OSHA citations may only be issued for violations that currently exist or existed in the past 6 months, so employers should not expect the trend of COVID-19 related claims to end while the pandemic persists.
Nexsen Pruet stands ready to assist employers when responding to OSHA complaints from any industry.