It’s both astonishing and exhilarating how our country comes together at times of National crisis, shouldering the collective burden and collaborating towards a speedy resolution and return to better times. We’ve experienced this in times of war, natural and economic disasters, and now with the COVID-19 Pandemic. However, what is a unique American creation is that during times such as these, as the nation moves forward in lock-step, voices of dissent and constructive criticism are not only tolerated, they are expected and welcomed by many, as a showcase of our societal diversity. This blog post certainly falls under the “constructive criticism” label.

Just as average citizens turn their eyes towards the Government (Local, State, Federal) for guidance on how to best act during this pandemic, operating under the correct assumption that our government is informed by the best and brightest scientists and health professionals in the country, US employers look to the Department of Labor, and specifically the Occupational Safety and Health Administration (OSHA) for direction as to how to best defend both our employees and our organizations against the immediate and longer-term impact of Coronavirus. So far, OSHA’s mid-term grade does not seem very promising.

As Coronavirus hit the US, OSHA made some peculiar announcements regarding the “recording” (in the OSHA sense of the word) COVID-19 infections, and deemed it “different” from the classic “cold and flu” non-recordable illnesses, making them “OSHA-recordable”, a virtual impossibility for an employer who has no ability to determine whether an employee is, indeed, infected. Then it relented, and issued guidelines by which only “infections which originated in the workplace” would be considered “recordable”. How an employer would presume to know how an employee got infected, and where, remains a mystery.

Moreover, OSHA currently only holds “High Risk Employers” such as health care entities, emergency responders or prisons to a COVID-19 record-keeping standard, completely ignoring other industries, such as meat packing, which have had some locations turn into proverbial regional “grounds zero” for infections. Meat-packing! The very industry that helped start the Federal government’s oversight of Workplace Health, dating back to Upton Sinclair’s 1906 exposé “The Jungle”, which most of us read back in high school. For most part, employers are left to their own devices in defining their own internal procedures and protocols regarding prevention of workplace contamination. Vague Department of Labor statements concerning “implementing good hygiene practices in their workplaces and otherwise mitigating Covid-19’s effects.” are not particularly helpful, as they don’t articulate the specific expectations for various, diverse industries. Retail is a great example: How should a store maintain social-distancing? What barriers should be installed? Which Personal Protective Equipment is required? How to manage shift changes? These (and hundreds of additional) questions require national guidelines, which should then lead to implementation assistance and funding. While the Federal government expects for many of these issues to be resolved at the local or state level, it’s painfully apparent that our local governments are simply not set up to evenly address these matters, even during less turbulent times. My sense is that OSHA has been caught with its pants down on this: the prospect of a regional or national pathogen outbreak is not a new one, and one would expect that, just like the Pentagon has somewhere a secret plan ready for the unlikely day when Canada attacks us, OSHA would have had drawn-up “rainy-day” plans for a widespread disease. Alas, that does not seem to be the case.

Much to my mother’s disappointment, I am not an attorney. But it doesn’t take one to recognize the immense employer liability exposure presented by this crisis. The lack of national workplace standards is creating a broad field-of-play for many litigants, with COVID-19 wrongful-death lawsuits already being filed against US employers. OSHA itself is hammered with thousands of employee workplace complaints regarding unsanitary work conditions and potential Coronavirus exposure. These new workplace health concerns, combined with the sizable portion of employees who are now working from home (and presenting entire new vistas of Worker’s Compensation complications), may very well end up transforming our workplaces and increasing perceived employee liability.

Which is why it has become more important than ever to accurately and rapidly document any and all workplace incidents, whether they pertain to employee illness or injury, or simply document a damage, safety concern, or near-miss. A crucial component of employers’ defense against predatory legal actions or the capricious actions of an unfocused regulator will always include precise, non-repudiable and indelible records of events, actor and witness statements, supporting pictures and documents, organized in a clear and credible fashion. This level of recordkeeping needs to become the standard practice for any and all workplace exception events, regardless of their ultimate disposition which, by definition, will always lie in the future, with yet-unknown outcomes.

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Compatica is designed expressly in support of this model: All workplace incidents and events are documented in real-time at their point of occurrence, via an intuitive, obvious-use Apple iOS or Google Android app. Data is communicated and securely stored in the Cloud, which authorized administrators and managers access to monitor incidents and manage the organizational response.