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Nevada OSHA Leads Enforcing Worker Virus Protections (Corrected)

July 30, 2020, 4:46 PMUpdated: July 30, 2020, 8:37 PM

While federal OSHA hasn’t yet handed out many Covid-19 citations, Nevada’s state-run worker safety agency has been issuing citations for several weeks to companies such as Walmart Inc. and contractors building Allegiant Stadium in Las Vegas.

Since mid-March, the Nevada Occupational Safety and Health Administration has issued citations to more than 100 businesses and visited more than 3,500 establishments to check that they’re complying with state requirements for social distancing and wearing face masks. Among the mandates are performing daily checks of employees’ health, making sure customers wear face coverings, and conducting a job hazard analysis if close contact between workers can’t be avoided.

“We want to make a maximum impact,” said Victoria Carreon, who oversees Nevada OSHA as administrator of the state’s Division of Industrial Relations.

The Nevada inspection effort started in mid-March with a focus on construction sites because building was among the few open industries, Carreon said.

As other industries have opened their doors, the inspections expanded with an emphasis on sites where large numbers of people gather, such stores and public pools, and businesses receiving complaints.

Most of the citations are for not adhering to state orders on business virus precautions. Similar to the federal government, Nevada doesn’t have a specific rule for the coronavirus, but uses the state’s general duty clause (NRS 618.375) to cite employers for not following the orders. Also similar to the federal OSHA’s general duty clause, the state provision requires employers to maintain work sites free from recognized hazards that cause or are likely to cause death or serious physical harm to employees.

The state often issues citations within days of the inspection, using an expedited legal review process, Carreon said. In contrast, federal OSHA hadn’t issued any general duty clause citations as of late July and has up to six months to cite an employer.

Modified Inspection Protocol

Nevada OSHA is following a different procedure for virus-related efforts than it would when inspecting for other hazards, Carreon said.

Typically, the agency would make an unannounced inspection and later cite an employer for any violations. The Covid-19 process starts with an unannounced visit to check if the employer is complying with state requirements. In cases where employers fall short of compliance, the Nevada OSHA representative details the problems on-site and what must be done to correct them without issuing a citation. In 87% of those first unannounced visits, the inspector finds businesses are complying with the mandates, according to state figures.

Several days later, a state inspector will return unannounced to check whether the work site is meeting state mandates. During those second visits, more than 90% of employers were complying.

If violations continued, the state will then issue citations, Carreon said.

Nevada OSHA data shows the proposed fines have ranged from $2,212 to $13,494, the maximum penalty for a serious citation.

The cited employers also may be mentioned in press releases. Among the companies whose citations were announced include four Walmart stores, an O’Reilly Automotive Inc. store, and contractor Mortenson-McCarthy Joint Venture, the firm building Allegiant Stadium that will soon be the home of the NFL’s Las Vegas Raiders.

In an extreme case, the state could seek to close a business, but that hadn’t happened as of July 28, Carreon said.

Monitoring Hospitals

Carreon said Nevada OSHA also continues to conduct inspections at workplaces where virus precautions can be more complicated to monitor, such as at hospitals.

Judy Domineck, a nurse and executive board member of Service Employees International Union Local 1107 in Las Vegas, said health-care facilities need more state inspections because workers continue to report shortages of personal protection equipment and a lack of effective sanitization of masks. Domineck said she wears her own N95 mask under her hospital-issued cloth mask.

Employer-side attorney Charles Keller, a partner at Snell and Wilmer L.L.P. in Phoenix, said it remains to be seen whether the Nevada citations will withstand legal review if they’re appealed. No other Southwestern states had mounted similar programs, Keller said.

Because of the ongoing state of emergency in Nevada, employers who want to contest citations don’t have to file appeals until 30 days after the state’s emergency ends, Keller said.

The state’s guidance on social distancing and face coverings has changed and could be challenged. “There are a lot of people who don’t think this is legally appropriate,” Keller said.

The citations also could be challenged on more typical grounds, such as whether a construction project’s general contractor was appropriately cited when a subcontractor’s employees didn’t wear masks, Keller said.

(Updated to reflect correct name of Nevada Division of Industrial Relations in third paragraph. )

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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