THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

|                                                   |  |                         |
|---------------------------------------------------|--|-------------------------|
| SECRETARY OF LABOR,                               |  |                         |
| Complainant,                                      |  |                         |
| v.                                                |  | OSHRC DOCKET NO.21-0432 |
| ARIANA MURRELL-ROSARIO d/b/a LIBERTY TAX SERVICE, |  |                         |
| Respondent.                                       |  |                         |

APPEARANCES:        

Paul Spanos, Esquire

Department of Labor, Office of the Solicitor

Boston, Massachusetts

For the Secretary

Joseph M. Sano, Esquire

Lynn, Massachusetts

For Respondent

BEFORE:

Covette Rooney

            ChiefAdministrative Law Judge

DECISION AND ORDER

This proceeding is before the OccupationalSafetyandHealthReview Commission (the Commission) pursuant to§10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.§ 659(c) (the Act). 

On March 17, 2021, Compliance Officer (CO) Gilad Gabbay opened an inspectionofLiberty Tax Service(LTS)at 175 Lewis St., Lynn, Massachusetts.1 (Adm.Fact¶¶3, 5). The inspection was in response to a complaint thatemployees were not allowed to wear face coverings in the officeas protection from COVID-19. (Tr. 41, 66-67). As a result of the inspection OSHA issued a Citation and Notification of Penalty(Citation)onApril 8, 2021, for an allegedwillful violation ofsection 5(a)(1) (generaldutyclause) of the OSH Act with a proposed penalty of $136,532. The Citation alleged Respondent had not protected its employees fromthe recognized hazard of SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2), the virus that causes COVID-19. (Citation,6). 

Respondent submitted a timely notice of contest and the case was docketed with the Commission. The Complaint and Answer were subsequently filed.2 A video hearing using the WebEx platform was held onNovember16, 2021. Both parties submitted post-hearing briefs and reply briefs.

At the hearing, the Secretary called five witnesses: CO Gabbay, Dr. Aaron Tustin (Secretary’s expert),[redacted](an LTS customer), Lisa Tobin (inspector for City of Lynn), and Gene Cusack (Sergeant in Lynn Police Department). Respondent called two witnesses: Arianna Murrell-Rosario(owner of LTS) and Ann Nguyen (office supervisor atLTS).3

Thekey issues in dispute are whether COVID-19 was a recognized hazard, whether LTS adequately abated the hazard of COVID-19 in its office, and whetherLTS acted with plain indifference to employee safety. 

For the reasons set forth below, the undersigned affirms the willful violation of the General Duty Clause and assesses a penalty of $95,500.

The Hearing

Initially,this matter wasscheduled for hearing atthe U.S. Tax Court in Boston, Massachusetts(Courthouse). SeeOctober 14, 2021 Notice of Precise Location of Hearing.OnOctober28, 2021, the undersigned issued an Order setting forth the safety protocols forthein-person hearing. SeeAmended Notice of Hearing and Order Regarding Safety Protocols for In-Person Hearing(Order). The Order set forth the COVID-19-related requirementsfor the hearingandentry totheCourthouse. These requirements included the requirement for everyone to wear a face covering during the hearing,get atemperature check,answer COVID-19 health screeningquestionsto enter the building,and complete aCertification of Vaccination form. Id.

In the Joint Pre-Hearing Statementdocketed November 3, 2021, Respondentrequested an accommodation for the hearing.4

Respondent [Ms. Ariana Murrell-Rosario] will need a medical accommodation to enter the courthouse on November 16th for trial. The Respondent is unable to wear face coverings due to her inability to safely breathe in such. In addition, the Respondent has severe allergic reactions to polypropylene fibers which may depending upon exposure level impact[her]ability to safely breathe and could trigger a medical asthma emergency.

If the federal courthouse in Boston does not provide physical accommodations, then the Respondent requests to have a remote zoom hearing on November 16th.

SeeJ.Pre-H’rg.Statement,6. The Secretary opposed the request for a remote hearing.

On November 3, 2021, the undersignedmovedthe hearing location to the WebEx video conferencing platform.5SeeNovember 3, 2021Order Regarding Video Conference Hearing:Instructions and Protocols. The undersigned notedtherein“that videoconferencing is a technology available to mitigate any delay in proceeding and it will overcome the Respondent’s enunciated concerns.” Id.

Jurisdiction

Based upon the record, theundersignedfindsRespondent, at all relevant times, was engaged in a business affecting commerce and was an employer within the meaning ofsections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) and (5).SeeAdm. Facts ¶¶ 1-2. Theundersignedfindsthe Commission has jurisdiction over the parties and subject matter in this case.

Findings of Fact

TheCOVID-19pandemic6

On January 31, 2020, the United StatesHealth and Human Services Secretary declared “a public health emergency for the entire United States to aid the nation’s healthcare community inresponding to the 2019novel Coronavirus (COVID-19).” (GX-1,Governor’s Declaration of Emergency).

On March 10, 2020, The Governor of Massachusettsdeclared a state of emergency in response to COVID-19. (GX-1). The Governor’sDeclaration stated that the disease caused byCOVD-19is “a contagious, and at times fatal, respiratory disease.” (GX-1). Further, the Declaration stated that “the worldwide outbreak of COVID-19 andthe effects of its extreme riskof person-to-person transmission throughout the United States and the Commonwealth significantly affect the life and health of our people, as well as the economy, and is a disaster that impacts the health, security, and safety of the public.” (GX-1). On March11, 2020, the World Health Organization (WHO) characterized the COVID-19 outbreak as a pandemic. (GX-2). 

On November 6, 2020, the Governor of Massachusetts issued COVID-19 Order No. 55, Revised Order Requiring Face Coverings in Public Places (Order 55).7 (GX-2). Order 55 stated the CDC (Centers forDiseaseControl) determined that“COVID-19 is spread mainly by person-to-person contact and that thebest means of slowing the spread of the virus is through practicing social distancing and by minimizing personal contact with large groups and environments where the virus may be transmitted.” (GX-2). Order 55 urged Massachusetts residents to “limit activities outside of the home and to practice social distancing at all times to limit the spread of this highly contagious and potentially deadly virus” and that COVID-19 can be transmitted by an infected individual even when “the individual does not exhibit symptoms of the virus.” (GX-2). Order 55 set forth the requirement for everyone in Massachusetts over 5 years of age to wear “a mask or cloth face covering over their mouth and nose when in a public location” including businesses,whether indoors or outdoors. (GX-2).

Companybackground

LTS provides tax preparation and related servicesfromaleasedofficespacein Lynn, Massachusetts. (Tr. 156-57; Adm. Fact¶2). Arianna Murrell-Rosario hasbeenthefranchise ownerof this LTSofficesince 2001. (Tr. 156;Adm. Fact¶8). Thepeakworkseasonfor LTSoccurs during thetax season,January 8throughApril 15. (Tr. 156). During the peaktax seasonLTS is open 7 days a week and has extended hours. (Tr. 156-57; GX-8,at1-2). The remainder of the year LTS is not open 7 days a week and is only open 8 hours a day. (Tr.156-57)

Massachusetts DLSactions

OnFebruary 23, 2021, the Massachusetts Department of Labor and Standards (DLS)sent aCease-and-DesistOrder (DLS Order)to LTS, noting a violation of the local health code. (Tr.195-96; GX-3). Under the description ofviolation, theDLS Orderstated that “the local Board of Health has had multiple contact with [LTS] for its repeated failure to implement and provide proof of compliance with COVID-19 safety rules.” (GX-3). Ms.Murrell-Rosarioacknowledged thatLTShad receivedtheFebruary 23DLS Order. (Tr. 195-96; GX-3). 

TheDLS Ordersetforth three violationsof Massachusetts COVID-19 safetyregulations. (GX-3). The first violation was described as “[e]mployees are instructed by management not to wear a face covering.” (GX-3). The second violation was described as “[c]ustomers are instructed by management to remove face coverings” and “[s]ignage for customers contains scientifically inaccurate information and does not comply with Massachusetts COVID-19 standards.” (GX-3). The third violation was described as “[p]rocedures are not in place, and layout of the business has not been adjusted, to provide social distancing between employee-to-employee and employee-to-customer.” (GX-3). 

TheDLS Orderincluded a link toapageat the state of Massachusetts websiteentitled “Sector Specific Workplace Safety Standards for Office Spaces to Address COVID-19,”thatincludedinstructions for protection against the spread of COVID-19 in general use office spaces.8 (GX-3).TheDLS Orderstated that LTS was to remain closed “until proof of COVID-19 compliance is provided to DLS and re-opening is approved by DLS.” (GX-3). 

Ms.Murrell-Rosarioresponded to the DLSOrderby email onFebruary 23, 2021(LTSResponse). (Tr. 199-200; GX-4). IntheLTS Response, Ms.Murrell-Rosario acknowledged receipt of theDLS Orderand set forththereasonshe didn’t allow disposable masks in the LTS office.Id.Further, she asserted that LTS wasnot subject to Massachusetts regulations and instead wassubject to OSHA regulations and,in particular,referencedsection 5 of theOSHAct.Id. She also alleged that LTS hadbeen followingNational Institute of Occupational Health and Safety (NIOSH)standards to eliminate viral pathogen hazardsutilizing the “proven model of Hierarchy of Controls.”Id.Shestatedthatmasksare not allowedin the LTS office because of the risk of “contaminationand infection with pathogens on these masks.”Id.Ms. Murrell-Rosarioalso stated thatLTS“provided disposal[sic]masks. . . for over a month” untilsheandanother employeeseemed to havean allergic reaction to the fibers in the masks.Id. After this, no one was allowed to wear this type ofdisposable maskin theLTSoffice.Id.Finally,theLTSResponseincluded links totwoonline articlesassupportfor theassertion thatMs. Murrell-Rosariohad researched allergic reactions to disposable maskfibers.Id.

DLS repliedto LTS on February 24, 2021,re-iterating its position that LTS “must nothave employees or customers on premises” until DLS approvedre-openinguponcorrection of thethreeviolationitems: “face coverings required for employees. . .face coverings required for customers. . .[and]layout adjusted to provide distancing.”Id.DLS reiteratedthatLTS was still in violation of Massachusetts COVID-19 Order 55 and advised additional fines would be issued until DLS received proof of compliance. (Tr. 199-200; GX-4). Further,DLS stated that it had read theresearch articlescitedin theLTSResponseand determinedLTS’sconclusionsabout harm from maskswere“incorrect”and that “cloth face coverings are required” at LTS. (GX-4).

Ms.Murrell-Rosarioacknowledged that LTShadalsoreceivedtwo civil citationsfrom DLSbecause there had not beenproof of correctionforthe violations set forth in the February 23DLS Order. (Tr. 201-06; GX-5, GX-6). These citations were issued on March 2, 2021,andMarch 4, 2021(DLS Citations). (GX-5,GX-6).

TheOSHAinspection

On the early afternoon of March 17, 2021, CO Gabbay went to Liberty Tax Service (LTS) to investigate a complaint that employees were not allowed to wear facecoverings. (Adm. Fact¶ 5;Tr.66-67). The CO photographed the signontheentrancedoor thatread,“MasksAre Not Allowed In Office.” (Tr. 45; GX-8, at1-2). The posted operating hours showed that for a portion of the week, Wednesday 8 a.m. through midnight Friday, the office was open 24 hours a day. (Tr. 47, GX-8, at1-2).Because the entrance door was locked, the CO knocked andasked for amanager. (Tr.48). Ms. Murrell-Rosariocame to theentrancedoor and introduced herselfas the owner. (Adm. Fact ¶8;Tr. 48). CO Gabbayentered the office to conduct his inspection, which includedtakingphotographs. (Tr.44,48-49). CO Gabbay was at the LTS office sixtytoninety minutes. (Tr. 57). 

The frontentrancedoor opened directly intothe main officearea where LTS employees worked with clients for tax preparationservices. (Tr. 49). There were four or five chairs along the frontwallof the main office area wheretwo customers were waiting. (Adm. Fact ¶6;Tr. 50-51;GX-8, at3-7, 9). Next to the chairs for the waiting customers was aprinted signreminding customersto “cover your cough and sneeze.”(GX-8,at10). 

The COobservedthat employees and clients were withinsixfeet of each other, withoutface coveringsor physical barriers. (Tr. 49).Themainoffice area was open, there were no walls or other barriers between desks. (GX-8, at3-7, 9). The photographsshow six desks inthemainoffice area. Id.At eachdeskan employee faced the customerthat satjust across the desktop, roughly two to two-and-a-half feetaway. (GX-8,at3-7, 9;Tr. 52). The desks were arranged in three rows, two desks per row, with a center aisle from front to back between the desks. (GX-8at3-7, 9). On the back wall of the open office area were two doors; one was closed and marked“restroom” andthe other was anopen door into what appeared to be a storageroom(stacks of boxes and shelvingwere visible). (GX-8,at4). Near theveryfront of the main office area, was a doorway that led to a second adjacent office areathat wasMs. Murrell-Rosario’swork area. (GX-8,at7-8). The second office area appeared tobeabout the same size as the main office area. (GX-8,at8). This area had two desks and several pieces of office equipment. (GX-8,at8). 

The CO observedfour LTSemployees working in themainofficeareaassistingfivecustomers. (Adm. Fact ¶6,Tr. 50-51; GX-8, at3-7, 9). The four employees were not staggered across the six desks, instead they were grouped in the frontfourdesks, side-by-side and back-to-back. (GX-8, at3-7, 9). Due to the arrangement of the desks,an LTS employee had the customer he was assisting across the desk in front of him while another customer was at his back being assisted by the LTS employee behind him. (GX-8, at3-7, 9).

On one desk, a printed policy had been tapedthatto the desktopthatstated:

“MASK POLICY Due to biohazard risks to our employees from masks, you must remove your mask upon entering our tax office. 1. We will give you a plastic bag to put your mask into. 2. We will give you hand sanitizer to sterilize your hands after removing your mask. 3. At your discretion, while not mandatory, we will provide you with a clean sterile mask. Thank you for helping to keep []workplace free of pathogens.” 

(Tr. 51;GX-8,at5). 

CO Gabbaydiscussed the Respondent’smeasuresto protect employees from respiratory illnesses with Ms. Murrell-Rosario. She told the CO that Lysol was used as a disinfectant on surfaces and in the air. (Tr. 54). She confirmed that it was the office policy that no one was allowed to wear a mask in the office, including customers. (Tr.46-47). CO Gabbaynoticed thattheheating and ventilation (HVAC)ducts did not appear to be modifiedand there werenospecialventilation measures in place;Ms.Murrell-Rosarioconfirmed no modifications had been made to the HVAC system. (Tr. 52, 54). The LTS office had no open windows. (Tr. 53, Tr. GX-8,at4, 7-8). Ms. Murrell-Rosario informed the CO that arear doorwas periodically opened to improve air flowin the main office area. (Tr. 54). However, theCO observed that thereardoordid not lead directly to the main office area; itwas insidethestorage closetthat wasat the back of themain office area.Additionally, thereardoorwas not openwhenthe COarrived at the LTS office.9 (Tr. 55). After the CO mentioned ventilation, Ms. Murrell-Rosario then opened therear doorthat wasinsidethe storage closet—the front entrance door remained closed. (Tr. 53, 57). 

The CO explained that ventilation measures can change the air flow in an office to move contaminants away from an employee. (Tr. 55-56). For example, at welding shops a mobileventilation device with an “elephant trunk” hose can be used to capture fumes. (Tr. 53). The COfurtherexplainedthatsimply opening the rear door every hour or so does not provide sufficient air flow to remove COVID particles from the air. (Tr. 55-56). 

In the CO’s discussion with Ms.Murrell-Rosario, she told him that she knew of the hazards of COVID-19,she knewthat it was serious, andthenshe described the measures taken to protect employeesin theLTS office policy. (Tr. 56). She did not provide thewrittenoffice policy during the onsite visit. (Tr. 57). Five days after the CO’s visit,Ms.Murrell-Rosarioemailedthe LTSoffice policy on respiratory virusesto the CO.10 (Tr. 57; RX-1). 

The CO attempted to follow-up with Ms.Murrell-Rosariowith questions about theoffice policyandarequest to interview employees. (Tr. 84). However, Ms.Murrell-Rosarioinformed the CO that OSHA was not allowed to contact her or her employees for any additional information. (Tr. 65, 85). 

[redacted]

On March 5, 2021,[redacted]went to the LTS officeto have his taxes prepared. (Tr. 20-21). Before[redacted]went to the LTS office, he had called and exchanged emails about the possibility of LTS preparing his taxes. (Tr. 21-22). He told Ms. Murrell-Rosariothathe would bring his information to the officebecausehe was not comfortable sending tax information by email. (Tr. 22-23). WhenMr.[redacted]arrived at theLTS office, hefound the entrance door was locked. (Tr. 20-21). An employee then came to the door, handed him a plastic bag, told him to take the face mask he was wearing off and put it in the bag before entering the office. (Tr. 21-22). WhenMr.[redacted]asked “why,” the employee shrugged and stated that he could not come in with a face mask on. (Tr. 22). Mr.[redacted]could seeother employees inside the office. (Tr.22). Neither the employee at the door nor those insidewore a face covering. (Tr. 22). Mr.[redacted]did not enterthe LTS officebecause hewas unwilling to remove his mask “in the middle of COVID.” (Tr. 21). When he returned home, he emailed Ms. Murrell-Rosario to tell her he would not use LTS for his taxessincehe could not wear a mask inside.11 (Tr. 23).

Lisa Tobin

Lisa Tobin is a sanitarian in the City of Lynn Health Department’s Inspectional Services Division, which enforces city ordinances, state sanitary codes, and thestate’s COVID-19 relatedrequirements. (Tr. 25). TheLynnHealth Department was responsible for recording and verifying community complaints related to COVID-19. (Tr. 25, 32). It was Ms. Tobin’s job to inspect and verify complaints of possible violations. (Tr. 25).

On March 6, 2021, Ms. Tobin went to theLTS office to investigate a COVID-19 related complaint. (Tr. 25-26). She photographed the sign on the entrance door that stated,“Masks Are Not Allowed In Office.” (Tr. 30, GX-12, at1). Through the window, she took a photograph that showed a woman sitting at a desk inside the LTS office not wearing a face covering. (Tr. 26-27, 31; GX-12, at2). Ms. Tobincould not enter the office because the entrance door was locked. (Tr. 26). When an employee opened the door a bit,Ms. Tobin photographed the employeestanding in the doorway,not wearing a face covering. (Tr. 31;GX-12, at3). She observed the people inside were not wearing face coverings and were closer to each other than six feet. (Tr. 26-27). She also observed there were no protective barriers in place between individuals. (Tr. 27). Ms. Tobin did not enter the office. (Tr. 31).

TheLynnHealth Department visited the LTS office eight times toinvestigatecomplaints about the lack of face coverings, not being allowed to wear a maskinside, andlack ofsocial distancing. (Tr. 32).

Sergeant Eugene Cusack

On April 19, 2021, Sergeant Eugene Cusack of the Lynn, Massachusetts Police Department was dispatched to assist a patrol officer investigatinga complaint of COVID-19 protocol violations at LTS. (Tr.89-90). When they arrived at the location, they found the entrance door was locked, but through the windowSgt. Cusack could see seven people inside the office. (Tr. 91-92). Sgt.Cusack observed they were all within a few feet of one another and no one was wearing aface covering. (Tr. 92). Heknocked at the doorand asked the proprietor to allow them to come in to discuss the complaint. (Tr. 91). The proprietor refused to open the door, stated there were customers inside,anddidn’t allow them in the office. (Tr. 91-92).

The LTSpolicyforrespiratoryviruses

In 2006, Ms. Murrell-Rosariodevelopedanofficepolicy for respiratory viruses. (Tr. 157-58, 182, 195). She developed this policy to improve attendance and job performance during the tax season. (Tr. 157-58, 195). The policywas aone-page list ofrulesto avoidcontracting respiratory illnesses, such as the flu. (Tr. 158). Thepolicy set forth requirements for a ventilation plan,air sanitation with Lysol,12and surface cleaning at theend ofthework shift. (Tr. 158-59, 172, 174-175). The ventilation planconsisted ofopening the rear door(inside the storage closet at the back ofthe main office area)for15 minutes every hour to hour-and-a-half.13 (Tr. 160, 173). Sometimesthe rear door of the adjacent second office area was also opened. (Tr.159-60). Ms. Murrell-Rosario believed cross-ventilation would occur when customers came and went through the front entrance door. (Tr. 159). 

In 2021, Ms. Murrell-Rosario updated theLTSoffice policy with the additionof rulesforhand hygiene, respiratory etiquette,14andmask restrictions. (Tr.158,175-76, 182; RX-1). There was no change to the ventilation schedule; Ms. Murrell-Rosario believed her own system had been effective for 15 years, so she did not have a professional advise her on ways to improve ventilation in the office.15 (Tr. 194). The hand hygienerulerequiredemployeestowash their hands at the start of a shift and before theyate. (Tr. 176; RX-1). Customerswere requiredto use a hand sanitizer before entering the office. (Tr. 176; RX-1). For respiratory etiquette, signswere posted instructingpeopletocough into their elbow. (Tr. 180). 

Ms. Murrell-Rosario was concerned the masks that customers wore could bring “high loads of pathogens” into the LTS office. (Tr. 163). Shefelt these outside maskspresented a riskdue toLTS’ssmall office andthe long hours sheandtheoffice supervisor worked. (Tr. 191-92). Starting in January 2021,LTSimplemented a process to keep customers from wearing an outside maskinto theoffice. (Tr. 163-64, 176). Ms. Murrell-Rosario created and posted a sign on the entrance door to notify clients that masks were not allowed inside. (Tr. 190-91). At the officeentrance, customers wererequired to put theirmasks orface coveringsinto a sealed bag andtosanitize their hands before entering the office. (Tr. 21-22, 176). For about a month LTS provided blue, disposable masks to anyone that wanted a mask. (Tr. 177). LTS then banned the use of the disposable masks as well. (Tr. 163, 176-77).

LTS implemented the policy of no masks in the officeafterMs. Murrell-Rosariobelieved thatshe and othershad an allergic reactionto theblue,disposablemasks. (Tr. 161-63, 185). After doing some research she believed polypropylene fibers in the disposable maskshad causedan allergic reaction and decided these masks could no longer be worn in the office. (Tr. 176-77). She was concerned that pathogens and fibers from masks would be floating around. (Tr. 192). Customers who did not want tobeunmaskedin the officecould drop off the paperwork and do their taxes remotely. (Tr. 165). 

Ms. Murrell-Rosario testified thatshe knewabout the COVID-19 virus andthat LTS was a small office that could easily get contaminated with “any high load” of COVID-19. (Tr. 191-92). Sheknewthat a “segment of the population was at high risk for serious disease and illness.” (Tr. 182, 193). She knew that people over the age of 65and thosewith two or more comorbidities had a higher risk of severe illness from COVID-19. (Tr. 193). Because she only had one employee over 65 and the rest of her staff was in their thirties, she did not believe it represented a serious hazard to the employees at LTS. (Tr. 182). 

Ms. Murrell-Rosariobelievedher office ruleshad stopped respiratory illness outbreaks in the office for 15 years. (Tr. 172). Ms. Murrell-Rosario did not believe any further protocols were needed due to the COVID-19 pandemic. (Tr.182,194-95). Ms. Murrell-Rosario believed thatopening the rear door for ventilation and periodically spraying Lysol providedadequate protection to employees.16 (Tr. 159, 172). 

Ms. Murrell-Rosario stated that she had done “extensive research” for many years todevelopthe“Office OSHAPolicy”for respiratory viruses like “influenza or coronavirus.” (Tr. 160, 170-71; RX-1). Andshe believedher system must work because “not one single case has been traced back to my office.” (Tr. 180-81). She also stated that she had done her own research into allergic reactionsto the polypropylene fiber in certain face masks. (Tr. 179). 

Ann Nguyen

Ann Nguyen, the office supervisor, had workedatLTS for 15 years and worked 60-65 hours per week during tax season. (Tr. 144, 150). She claimed that when she arrived at the office on March 17 at 1:00 pm, about an hour before the CO’s inspection, that both of the rear office doorswere open. (Tr. 147-48).17 She told the CO they did not need to wear masks in the office because there was plenty of ventilation. (Tr. 149-50). Sheconfirmed thatLysolwassprayed in the air and that the deskswere disinfected. (Tr. 149). 

Generally, Ms. Nguyen’s testimony was not helpful to the undersigned. It was clear that Ms. Nguyen wasaffected by the presence ofMs. Murrell-Rosario; during cross-examination she agreed that she wanted to please her boss.(Tr. 151-52). The followingexcerptis an example of theeffect onMs. Nguyen’s testimony during direct examination. (Tr. 145).

Q: And is there anything in particular that you do every year at the beginning of the tax season?

A: We have, in January, we usually have the, like we say, the employee policy, like with the policies and policy.

Female Voice: Policy and procedure.

The Witness: Policy and procedure.

Mr. Spanos: I’m going to object.

Female Voice: I’m sorry. I’m sorry. She was having a hard time.

(Tr. 145). Ms. Nguyen is the person identified as “The Witness” andMs. Murrell-Rosariois the person identified as “FemaleVoice” in the abovetranscriptexcerpt. 

Further, during cross-examination, when Ms. Nguyenwas askedwhether Ms. Murrell-Rosario was sitting next to[Ms. Nguyen]duringhertestimony, a “female voice” said “uh-huh.” (Tr. 152). Ms. Murrell-Rosario interjected that she was sitting across from Ms. Nguyen. (Tr. 152-53). Theundersignedthen statedonthe record, “in response to the questions, there was, in the background an “Uh-huh” at the conclusion of[Ms. Nguyen’s]testimony, and I’m certain that the recording of this record will, in fact, verify that. And I would ask the Court Reporter that, in her transcriptions, as the record is being transcribed, that “uh-huh” to be transcribed into the record.” (Tr. 153-54).18

There was noevidence to supportMs. Nguyen’stestimony that bothrear doors were open just before the CO arrived at the LTS office. She provided testimony from the home of her boss, Ms. Murrell-Rosario, and sat across the table from her bossduring her testimony. (Tr. 152-54).The undersignedobserved that Ms. Nguyen appeareduneasyand uncomfortable as she responded toquestions posed during cross-examination.Because of thesecircumstances,the undersignedfindsMs. Nguyen’stestimony wasdissemblingandheavilypredisposedto benefit LTS and isgiven little weight.

Experttestimony

Dr.AaronTustin was the Secretary’s expert witnessregardingthe risk of COVID-19 to LTS employees. (Tr. 95-96). Dr. Tustin received his Doctor of Medicine from Vanderbilt University Medical School and a Master of Public Health Degree from Johns Hopkins School of Public Health. Dr. Tustin is board certified in Occupational Medicine. (Tr. 97-98). His prior work experience includes research on infectious disease epidemiology in Peru. (Tr. 99). Dr. Tustin is a Medical Officer with OSHA’s Office of Occupational Medicine and Nursing (OOMN). (Tr. 98). As Medical Officer his role is primarily that of a consultantfor medical questionsfor various OSHA offices. (Tr. 98). The Court accepted Mr. Tustin as an expert in thesubjectareas of COVID-19 hazards, transmission, and prevention in an occupational setting. (Tr. 102-03).

Dr. Tustin testified thatCOVID-19is a virus thatis primarily transmitted by airborne respiratory droplets and aerosols, sobreathing is a means forindividualstocontract the virus. (Tr.108,114-15). AndCOVID-19 is one of the more transmissible respiratory viruses. (Tr. 125). Because both symptomatic and asymptomatic people can transmit the virus, COVID-19cannot be identified by looking at aperson. (Tr. 115-16).

A COVID-19 infection can causesevere acuteillness that requires hospitalcare. (Tr. 104-05). Aprimarytargetof the virusis the respiratory system, whichdevelops intoserious difficulty inbreathing. (Tr. 104-05). ACOVID-19 infection canalsoresult in cardiac inflammation and blood clotting issues. (Tr. 105). In addition toshort-term acute medical issues,aCOVID-19 infection can result in significantlong-termhealth effects suchascontinuing symptoms of fatigue,anxiety,anddepression. (Tr. 105).At the time ofDr. Tustin’stestimony, over 3 million people in the United States had been hospitalizeddue toserious illness from COVID-19. (Tr. 105). 

COVID-19 infectionis also a significant cause ofdeath.In 2020,there were 500,000 deaths attributed to COVID-19—it wasthe third leading cause of death in the United States after heart disease and cancer. (Tr. 104). As ofMr. Tustin’s testimony inNovember 2021, over 700,000 deaths had occurred in the United States since thebeginning of thepandemic. (Tr. 104). 

When theCOVID-19virus circulatesinacommunity anyone can be exposed to the virus. (Tr. 114-15). During February and March of 2021 there were over 8,000 confirmed cases of COVID-19 in adults in Essex County, where LTS is located. (Tr. 115). This represented more than one percent of the population, which as Dr. Tustin explained, meant there was widespread community transmission. (Tr. 115). Largeoutbreaks ofCOVID-19infectiontendtooccurwhere a lot of people are indoors in close proximity to each other. (Tr. 112). 

Because COVID-19istransmitted by breathing, LTS employees were exposedboth fromtheir coworkers and from the customers. (Tr. 116).Community transmission in the Lynn area meantthere was potential exposure totheCOVID-19virusanytime people were together.(Tr. 117). Dr. Tustin considered thisasignificantriskfor LTSemployeesbecause theyworkedin a “fairly small room,” closer than six feettoeach other,and two to three feet from the customers theyassistedface-to-face. (Tr. 117-18; GX-8, at3-6).

Dr. Tustin statedthat elimination of thetransmissionhazard to LTS employees could be achieved through telework. (Tr. 133). Dr. Tustin stated it wasunlikely the hazard could be eliminated altogether when peopleworkin the same room. (Tr. 133). Administrative controls,such as testingfor the virus,are useful but cannot eliminate transmission. (Tr. 133-34). LTS’spractice of spraying Lysol in the air does noteliminate theCOVID-19hazard. (Tr. 134). Sanitizing, cleaning, and disinfectiondonot eliminate the hazard. (Tr. 134). 

Dr. Tustinexplainedthere were several ways to reduce the risk of contracting COVID-19 infection, among them areface coverings, physical distancing, and physical barriers. The general consensus of public health expertsis that a face covering materially reduces the transmission of the virus in the population—ameta-analysisof multiple studiesfound that aface covering reducedthe odds of COVID-19infectionby 85%.19 (Tr. 107-08). Laboratory studiesfound thatdepending onitsmaterial,a face covering blocks40to99 percentof droplets and aerosols. (Tr. 108). 

Physical distancing is another means to reduce the transmission of COVID-19. (Tr. 111-13). Studies show that outbreaks tend to occur in places where peopleare in close proximity to each other. (Tr. 112). The consensus among public health experts is that the more distance between people,the better. (Tr. 111, 113). A WHO meta-analysis found thatCOVID-19transmission was reduced by a factor of two for every two meters (approximately 6 feet) of distance between individuals. (Tr. 111-13). Further, clear plexiglass partitions between people are recommended and canhelpreduce the risk of virus transmission. (Tr. 120).

With respect to the LTS workplace, based on his review of the scientific literature,Dr.Tustin believed that LTS could have materially reduced the hazard of COVID-19 with face coverings,by placing employees at a greater distance from each other, and installing plexiglass barriers.(Tr. 119-20). 

Citation

General Duty Clause Violation

To prove a violation ofsection 5(a)(1)of the Act, also known asthe generaldutyclause, the Secretary must demonstrateby a preponderance of the evidencethat:(1) a condition or activity in the workplace presented a hazardto employees;(2) the employer or its industry recognized the hazard,(3) the hazard was likely to cause death or serious physical harm, and(4) a feasible and effective means existed to eliminate or materially reduce the hazard.”Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004) (citation omitted).The Secretary must also show that the employer knew or withthe exercise of reasonable diligence could have known of the hazardous condition. Otis Elevator Co., 21 BNA OSHC2204,2206(No. 03-1344, 2007).

Here,OSHA’s citation alleged:

The employer does not furnish employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to employees, in that employees are working in close proximity to each other and customers and are exposed to SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2), the virus that causes COVID-19.

SeeComplaint, Exhibit A,6. OSHA’s citationlistedtwelvepossiblemeans of abatement; however, only four of those were pursued at the hearing and in post-hearing briefing. SeeId.

The SecretaryassertsLTSemployees were exposed to the hazard of unnecessary exposure to COVID-19 andproposesfourfeasiblemeansof abatementthat could materially reduce the hazard: face coverings, physical distancing, physical barriers, and improved ventilation. (Sec’y. Br.12,17-18).

LTSassertstheCOVID-19viruswasnot a serious hazardforits employees, the tax preparation industry does not recognize theworkplacehazard of COVID-19, the Secretary has notshown that the proposed abatement is feasible, and Respondenthada respiratory virus policy, which had been in placefor15 years,that fully protectedits employees.(Resp’t’s. Br.16-18).

For the reasons that follow, the undersigned rejects Respondent’s arguments and finds that the Secretary has proved a violation of thegeneraldutyclause.

Hazardrecognition

For ageneraldutyclause violation,“the Secretary must define the cited hazard in a manner that gives the employer fair notice of its obligations under the Act by specifying conditions or practices over which the employer can reasonably be expected to exercise control.”Otis Elevator Co., 21 BNA OSHCat2207(citation omitted);see also,Arcadian Corp., 20 BNA OSHCat2007.Hazard recognition “may be shown by proof that a hazard ... is recognized as such by the employer or by general understanding in the [employer's] industry.”Otis Elevator Co., 21 BNA OSHCat2207(citation omitted); see generally,SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202, 1216 (D.C. Cir. 2014) (“Courts have long accommodated possible constitutional problems with fair notice in this context by interpreting recognized hazard only to include preventable hazards.”) 

The Secretary asserts that LTS recognizedthatCOVID-19transmissionwas a hazard and that it was generally recognized as ahazard foremployees workingin an office environment. (Sec’y. Br. 15-16).

Here the hazard is identified as unnecessary exposure to the COVID-19 virus. LTS’s recognition of the COVID-19 hazard is shown through its owner’s statements, notices from the state of Massachusetts, andtheno-mask rule it implemented. The owner of LTS, Ms. Murrell-Rosario, testified that she knew about the COVID-19 virus and that a “segment of the population was at high risk for serious disease and illness.” (Tr. 182, 193). She also stated that she knew that LTS employees were at risk of exposure because the office space wassmall,and some employeesworkedvery long hours. (Tr. 191-92). Further, LTS’s office rule for masks shows recognition of the COVID-19 hazard. Ms. Murrell-Rosariowas concerned that “pathogens”would be brought into the office on a mask,so LTSestablished a rule and process tokeep all masks out of the office.(Tr.163,176). Finally,recognition of the hazard was evident from theDLSOrder andDLSCitationsissued to LTS.TheDLSOrder andDLSCitationsspecifically address thehazard ofCOVID-19 transmission in the LTS office.Ms. Murrell-Rosarioalsoacknowledgedthat the Governor had implemented the COVID-19 Workplace Safety Standards.(Tr. 195-96, 199-200; GX-3, GX-5, GX-6). 

With respect to industry recognition, Respondentsimply assertsthe tax preparation industrydoes not recognize the hazard of COVID-19. (R. Br.17). However, thisargument misses the mark.Here, thenatureoftheCOVID-19hazardrelates not to thetype of work performed, instead it relates to theemployees’physicalworkenvironment.There is no dispute thatLTS is a tax preparationcompany that conducts itsbusinessinan office space.(GX-8).Thegeneralrecognition of the COVID-19 hazard inan office environment is shown through theguidance provided by the state of Massachusettsspecifically forofficeworkplaces.(GX-3,at2).Further, theDLSOrder andDLSCitations for non-compliancealsoshow there was ageneral recognitionof the risk of COVID-19 exposure inan office environment; the DLS Order directed LTS to awebsitepagededicated tothe hazard of COVID-19 in an office workplace.20(GX-3, GX-5, GX-6).

Additionally, Respondentrelies onPelronto assertthat the Secretarycannotdesignate customary activities at the LTS officeashazardous. (Resp’t’s. Br. 12;citingPelron Corp., 12 BNA OSHC 1833, 1835 (No. 82-388, 1986)).Respondent’s reliance onPelronis inapt. 

As the D.C. Circuit pointed out inSeaWorld, the relevant point ofPelronwas “the requirement that recognized hazards be “preventable” and “be defined in a way that ... identifies conditions or practices over which the employer can reasonably be expected to exercise control.” SeaWorld, 748 F.3dat1210 (citations omitted). Further, the D.C. Circuit went on to state that nothing in thePelrondecision “immunizesa workplace’s dangerous ‘normal activities’from oversight.”Id.at1211citing Nat'l Realty & Constr. Co., 489 F.2d 1257, 1266 (D.C. Cir. 1973). Respondent’s argumentis rejected.

Theundersigned finds thehazard of COVID-19in the workplace was recognizedboth by LTS and generally for employees working in an officeenvironment.Recognition of the hazard is established.

Exposure toaserious hazard

The Secretary must prove employees were exposed tothe assertedhazardandthe hazardwas“likelyto cause death or serious physical harm.” Peacock Eng’g, Inc.,26 BNA OSHC 1588,1589(No. 11-2780, 2017). The test is whether“if an accident occurs, the results are likely to cause death or serious harm”not whether an accident is likely to occur.Id.Exposure is established through actual or reasonably predictable access to the cited condition.Phoenix Roofing Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995), aff'd, 79 F.3d 1146 (5th Cir. 1996) (unpublished). Exposure can occur “while in the course of assigned working duties, personal comfort activities while on the job or their normal means of ingress-egress to their assigned workplaces.” Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976).

For the reasons that follow, theundersignedfinds the Secretary has proved employees of LTS were exposed to the hazard of COVID-19, which cancause thedeath or serious harm.

COVID-19 is contracted through breathinginairborne respiratory droplets and aerosols. (Tr. 108, 114-15). Becausethere waswidespread community spread of the viruswhere LTS is located,anytime people were together there was the risk of transmission of the virus. (Tr.108, 114-15,117). The LTS office space was small, with workspaces close to each other and close contact with customers. (Tr. 117-18; GX-8,at4-6). Thus,LTS employees wereexposed to transmission of COVID-19 from customers and coworkers.21

Respondentasserts the harmfrom COVID-19was not serious because itsemployeeswere mostly young and healthy. (Resp’t’s. Br. 18). On the other hand,LTS admitsithadone employee over 65and Ms. Murrell-Rosario knew that people over the age of 65and thosewith two or more comorbidities had a higher risk of severe illness from COVID-19. (Tr.182,193).Secretary’s expert credibly testified that a COVID-19 infection could result in serious illnessor death. (Tr. 104-05). Respondent’s assertion that its employees were not at risk of serious illness is rejected.

Respondentalso asserts thatthe Secretary must present “a body of reputable scientific thought”to prove there was a significant risk of harm in its workplace. (Resp’y’s. Br. 14).Respondent relies on the Commission’sKastalondecisionto support this assertion.Kastalon, Inc.,12 BNA OSHC 1928, 1935 (No. 79-3561, 1986)(consolidated).Respondent’sreliance onKastalonis inapt. InKastalonthe issue wasthe risk of carcinogens to employees handling a manufacturing chemical. Id.There, the Commission statedthata “body of reputable scientificthought” wasnecessary toshowthattheanimal studiesbeingreliedupon as evidence of riskcould beextrapolatedto demonstrate ariskof carcinogens to employeesin the workplace.Id.Here there is no reliance on animal studies to establishtherisk of harm;instead,COVID-19 infection isacommunicable diseaseknown tocauseserious illness in humans.

The evidence shows that COVID-19 infectionwas a serious illness thatcan result in death or serious harm. COVID-19 was recognized as an international public health emergency by the WHO anda public health emergency in the United States. (Tr. 104-05;GX-1). As of November 2021, over 3 million people had been hospitalized for serious illness and 700,000 had died since the beginning of the pandemic in 2020. (Tr. 104-05).TheSecretary has provedthat exposure to COVID-19 could result inserious illness or deathand LTS’s employees were exposed.

Abatement

The Secretarymustset forth proposed abatement measuresthatare feasible and willmaterially reduce the hazard.Arcadian Corp., 20 BNA OSHCat2011(citations omitted). The “Secretary has the burden of coming forward with evidence on the feasibility issue.” Whirlpool Corp. v. OSHRC, 645 F. 2d1096, 1098 (D. C. Cir. 1981). Where an employer has measures in place, the Secretarymustset forth additional measures that would materially reduce the hazard beyond what an employer already had in place. SeePepperidge Farm, Inc.,17 BNA OSHC 1993, 2040-41(No. 89-265, 1997) (citation vacated where Secretary did not identify additional steps that were feasible and reduced the hazard).

The Secretary asserts the following measures are feasible and effective means tomateriallyreduce the hazardatthe LTS workplace: wearing a face covering, physical distancing, physical barriers, and improving ventilation.(Sec’yBr. 17-18).

 First,Dr. Tustin testifiedthe general consensusamongpublic health expertswas thata face covering materially reduces the transmission of theCOVID-19virus.(Tr. 107-08).A face covering is a feasible abatement measure as shown by LTS’s prior distribution of masks and a supply of disposable face masks in the LTS storage room. 

Respondent’s assertion thatfacecoveringscould not be worn in the office because some employees had an allergic reaction to the fibersin disposable masksisrejected. Ms.Murrell-Rosario’sbeliefthat she and other employeesexperienced an allergic reactionto fibers in the maskhas no evidentiary support.22This belief was not substantiated by any corroborating evidence.Further,Respondent did notclaim that face coveringsgenerally, other than theblue,disposable masks, could not be used at the office.The Secretary has established face coveringswere feasible and could havematerially reduced the hazard of COVID-19in the LTS office.

Second, the Secretaryasserts thatLTS could have reduced the hazard by rearranging individual workspaces to create greaterphysical distance between employees. For example, the desks could be arranged into acheckerboard spacing pattern. (Sec’yBr.17-18). Respondent offered no rebuttal to the Secretary’s assertion. LTSoccupiedtwo storefront spaces. There were sixdesksin the main area and twodesksin the adjoining space, thus LTS had thespace to reconfigure theplacement of office equipment anddesksto create more distance betweenworkspaces.(GX-8, at3, 8). Further,Dr. Tustintestified thatfor every two metersthetransmission of COVID-19 is reduced by a factor of two. (Tr. 111-13).Physical distancing wasafeasible and effective means to materially reduce COVID-19 transmission.

Third,the Secretary asserts that physical barrierscould be erectedto reduce transmission. (Sec’yBr.17-18). Dr. Tustinconfirmed thatphysical barriers,such as a clear plexiglass partitions,could have been erectedbetween employees and customerstoreduceCOVID-19transmission at the LTS office. (Tr. 120).

Finally, LTScould haveimproved theventilation in the office.23 (Sec’yBr.17-18). Ms. Murrell-Rosario made no changes to the office ventilation for the COVID-19 hazard. Instead, she relied on what she believedto beadequate ventilation. Further, she chose to not get advice on how to improve ventilation at the LTS office. (Tr. 193-94). 

As the CO explained, simply opening the rear doorinsidethe storage closetevery hour or so, with no open windows,does not provide sufficient air flow to remove COVID particles from the airandmove the contaminants away from an employee. (Tr.53,55-56). For example, a mobile ventilation device with an “elephant trunk” hose can be used tomove air. (Tr. 53).Improved ventilation was feasible and a means to reduce virus transmission.

Generally, the undersigned finds the owner’s opinion on what constitutesadequate control for a respiratory illnessunhelpful. Respondent assertsthat in over 15 yearsno one had contracted a respiratory virus at the officebutprovides no means to validate this sweeping claim. (Tr.172). Respondent did not provide an expert witness to support its argument that it had adequate procedures for protection against COVID-19. It appears that her opinion is based on her own research rather than consultation with a professional. Little weight is given to Ms. Murrell-Rosarios’s testimony about effective ways to protect against respiratory illness.

The Secretary’sproposed abatementmeasures arefeasible and would materially reduce the transmission of COVID-19 at the LTS workplace. This element of thegeneraldutyclause is proved.

Knowledge

The Secretarymustshow that the employer knew or with the exercise of reasonable diligence could have known of the hazardous condition.Peacock Eng'g, Inc.,26 BNA OSHC 1588,1589(citations omitted). “The actual or constructive knowledge of a supervisor is imputable to the employer.” Jacobs Field Servs. N. Am., 25 BNA OSHC 1216,1218(No. 10-2659, 2015) (citations omitted). The employer's knowledge is directed to the physical condition that constitutes a violation. Phoenix Roofing, Inc.,17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995) (citations omitted)aff'd, 79 F.3d 1146 (5th Cir. 1996). It is not necessary to show the employer knew or understood the condition was hazardous. Id.

Respondent hadactualknowledge ofpossibleCOVID-19exposureat the LTS office. Ms.Murrell-Rosarioadmitted that sheknew COVID-19 was a transmissible respiratory virusand her knowledge is imputed to LTS. (Tr. 182, 193). Ms. Murrell-Rosarioknew that people over the age of 65andthosewith two or more comorbidities,had a higher risk of severe illness from COVID-19. (Tr. 193). Ms. Murrell-Rosario admitted that she knew LTS was a small office space that could get contaminated easily. (Tr.191-92). Further,Ms. Murrell-Rosario’sconcernthatcustomers’ maskscouldbringthevirus into the office also shows knowledge of theexposurehazard to employees. (Tr.163, 176).Finally,LTSknewof theCOVID-19transmissionhazardfromthe DLS Order andDLSCitations. (Tr. 195-96, 201-05). 

Respondent asserts the Secretary cannot use the actionsbythestate ofMassachusetts to prove Respondent’s knowledge of the COVID-19 hazard becausethey were notapplicable to theLTS office and notenforceable by OSHA.(Resp’t’sReply 4). This assertion isrejected. The content of the DLS Orders andDLSCitations are evidence of information known by the Respondent at the time of the OSHA inspection. Whether the DLS Order andDLSCitationsare enforceableis not at issue here. 

Respondent also asserts that any actions by the state of Massachusetts cannot be relied on because LTS is subjectonlyto OSHA jurisdiction for workplace safety.(Resp’t’s. Reply 4-6). As stated above, the relevance of the Massachusetts actions (declarations,DLS Order,DLS Citations) in the instant case istotheRespondent’s awareness and knowledge of the COVID-19 virushazardgenerally.24

Actual knowledgeof the hazardous condition of COVID-19 transmissionis proved.

WillfulClassification

The Secretary assertsa willful classification is supported becauseLTS was indifferent to the hazard COVID-19 transmission posed to its employees. (Sec’yBr. 20-22). “A willful violation is differentiated by heightened awareness of the illegality of the conduct or conditions and by a state of mind of conscious disregard or plain indifference.” Angel Bros.Enters., Ltd.,No. 16-0940,2020 WL 4514841, at *8(July 28, 2020) (citations omitted)vacated on procedural grounds, 18 F.4th827 (5thCir 2021);see alsoA.E. Staley Mfg. Co. v. Sec'y of Labor,295 F.3d 1341, 1351 (D.C. Cir. 2002)(upholding Commission’s determination that employer’s plain indifferencejustified a willful violation);Brock v. Morello Bros. Constr., 809 F.2d 161, 164 (1st Cir. 1987)(“an act many be willful if the offender shows indifference to the rules”).

The Secretary is not required to showtheemployerhada maliciousmotiveto prove a willful violation. Kaspar Wire Works, Inc.,18 BNA OSHC 2178, 2181 (No. 90-2775, 2000) (citation omitted),aff'd, 268 F.3d 1123 (D.C. Cir. 2001). (“An employer's motive for failing to comply with the Act's requirements, however, need not be evil or malicious in order to find a violation willful.”). “Secretary can establish intentional disregardfor the Act’s requirementsby showing that “the employer was actually aware, at the time of the violative act, that the act was unlawful. . . .”AJP Constr., Inc. v. Sec'y of Labor, 357 F.3d 70, 74 (D.C. Cir. 2004) (citation omitted).Alternatively, the Secretary can prove plain indifference by showing that the employer “possessed a state of mind such that if it were informed of the standard, it would not care.”Id. (emphasis and citation omitted). Home Rubber Co.,No. 17-0138,2021 WL 3929735, at *2(O.S.H.R.C.,Aug. 26,2021).

Respondent admits that it knew of the COVID-19 virus and thatinfection could result inserious illness or death. (Tr. 182, 193). Respondent admitted that it knew the virus was a respiratory illness that spread through the air. (Tr. 56, 182, 191-92). The owner, Ms. Murrell-Rosario,testified that sheknew that people over 65or“had two or more comorbidities”were at a higher risk for seriousillness and fatalitiesfrom COVID-19. (Tr.182,193). And, the ownerknew that one LTS employee was over 65. (Tr. 182). Even so, shedid not believe it was seriousbecause “the office staff is mostly in their 30s.” (Tr. 182). Despite knowing that COVID-19 was a respiratory virus that spread through the air and could result in serious illness or death, the only measures the Respondenttook were to address what she classified as a “respiratory virus”and not“specifically”geared to COVID-19.(Tr. 182).In prior years her protocols were ventilation andcleaning surfaces. Sheadded to the office policy,washing hands and not allowing masks to be worn in the office. This state of mind demonstrates plain indifferenceto the hazard. 

LTS had a heightened awareness of the need to protect its employeesfrom COVID-19due to theDLS OrderandDLS Citations. TheDLS Order andDLS Citationsemphasized the need to protect both employees and customers from exposure toCOVID-19through the use of face coverings and physical distancingin the office setting. (GX-3, GX-5, GX-6). 

The Secretary proved Respondenthad a willful state of mind as it wasplainly indifferent tothe hazard ofunnecessary COVID-19 exposureto its employeesandhad a heightened awareness of the conditions in its office.

Other Arguments

Respondentalsoasserted Secretary’s case failsbecause thegeneraldutyclause was pre-emptedand that a recent Supreme Court decision precludes COVID-19 hazards from OSHA jurisdiction.

Thegeneraldutyclause was not pre-empted by a specific standard

Respondent asserts thegeneraldutyclause is not applicable because a more specific standard, 29 C.F.R. § 1910.134, applies.25 (Resp’t’s. Br. 9). “The Commission has held that an applicable standard preempts application of the general duty clause” where the standard is “addressed to the particular hazard for which the employer has been cited.” Healy Tibbitts Builders, Inc,No. 15-1069, 2020 WL 5934209 *2 (Sept. 30, 2020) (citations omitted). However,when no specific standard entirely protects against the hazard alleged, citation underthe General Duty Clauseis proper.SeePeter Cooper Corps., 10BNA OSHC1203, 1211(No. 76-596,1981)citingTed Wilkerson, Inc.,9 BNA OSHC 2012 (No. 13390, 1981)(finding specific standard does not cover vaccination for anthrax exposure);see also,U.S. v. Sturm, Ruger & Co., Inc.,84 F.3d 1, 5 (1st Cir. 1996) (the Act imposes on employers a general duty to provide “employment and a place of employment which are free from recognized hazards” to fill gaps that exist in the specific promulgated standards);Armstrong Cork Co., 8 BNA OSHC 1070, 1073 (No. 76-2777, 1980),aff'd, 636 F.2d 1207 (3d Cir. 1980) (“The Commission has held that an applicable standard preempts application of the general duty clause”onlywhere the standard is “addressed to the particular hazard for which the employer has been cited.”).Respondent’s argument is rejected.

29 C.F.R. § 1910.134applies to a “workplace where respirators are necessary to protect the health of the employee or whenever respirators are required by the employer. . ..” See29 C.F.R. § 1910.134(c)(1). Therequirements of 29 C.F.R. § 1910.134 are not applicable here because respirators are not required for LTS employees. Respondent appears to conflatearespiratorrequirementwith the face coverings recommended as an abatement for COVID-19 exposure. The type of face coverings discussed as an abatement in this case are not respirators as contemplated by 29 C.F.R. § 1910.134. See generallyOSHA’sDecember 20,2017,interpretive letter to JohnBoren(a “surgical mask” is not considered to be a respirator)26;see also,Hospital Respiratory Protection Program Toolkit, p. 4-5, (May 2015)(a facemask does not seal tightly to the wearer’s face and are not “respiratory protection;” a respirator is designed to seal tightly to the face).27

Thus,29 C.F.R. § 1910.134 does not address the particular hazard at issue here and does not pre-empt application of thegeneraldutyclause. 

NFIB decision does not prohibit OSHA jurisdiction

Respondent asserts that a COVID-19 hazard is outside OSHA’s expertise and jurisdiction because it is not an occupational hazard. (Resp’t’s.Br.18;Resp’t’s.Reply 2, 7, 11). To support this assertion, Respondent relies onNatl. Fed’n. of Indep. Bus. v. OSHA,142 S. Ct. 661 (2022)(per curium) (NFIB).28 Respondent’s reliance onNFIBis misplaced.

At issue inNFIBwas OSHA’s authority to promulgate a rule related to COVID-19 vaccines issued as an emergency temporary standard (ETS). SeeCOVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402(Nov. 5, 2021)(to be codified at 29 C.F.R. parts 1910, 1915, 1917, 1918, 1926 and 1928. Specifically, Respondent relies on theCourt’s statement, that the vaccine “mandate takes on the character of a general public health measure, ratherthan an‘occupational safety or health standard.’”NFIB,142 S.Ct.at666.

However,NFIBis not applicable to the issues here. At issue inNFIBwas OSHA’s authority to promulgate the ETS,which set forth requirements forcertainemployers to develop a COVID-19 vaccination policy. Id.at664. The Applicants inNFIBsought “emergency relief” from the Court regarding OSHA’s enforcement of the ETS.NFIB,142 S.Ct.at 664.NFIBdid not address whether OSHA could, under thegeneraldutyclause, cite an employer for exposing its employees to transmission of COVID-19. Neither the issue of vaccines nor the promulgation ofthe ETS are at issue in the instant case. At issue here is whether the Secretary has proved the elements of thegeneraldutyclause. 

Even thoughNFIBhas no application to the instant case, the undersigned notes that in its dictathe Court did not rule out OSHA’s authority to regulate the workplace hazards affiliated with COVID-19.29Id.at 665-66(commenting that“targeted regulations are plainly permissible” and a workplace may have particular features that pose a special danger, such as those that were “crowded or cramped”).

Respondent’s assertion thatNFIBdeprives the Secretary of the authority to cite LTS under thegeneraldutyclause for unnecessary employee exposure to COVID-19 is rejected.

Penalty

The maximum penalty for a willful violation is $136,532.30 Section 17(j) of the Act requires the Commission to give due consideration to four criteria in assessing penalties: the size of the employer's business, the gravity of the violation, the employer's good faith, and its prior history of violations.31Compass Envtl., Inc., 23 BNA OSHC 1132, 1137 (No. 06-1036, 2010)aff'd, 663 F.3d 1164 (10th Cir. 2011). The gravity of the violation is generally accorded greater weight.See J. A. Jones Constr. Co.,15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). 

With respect to gravity, OSHAclassifiedthe severityas high because the risks associated with COVID-19 arehospitalizationand death. (Tr. 63-64). The probability was assessed as greaterbecause LTS hadlong operating hours andthere was alack ofmeaningfulprotective measures. (Tr. 64). There was no reduction for good faith becauseLTS did not have a robust safety program andthe owner did not cooperate during the inspection. The ownerdenied entryto the CO after the initial visit and did not allow the CO to interview any employees thereafter. (Tr. 65). 

Respondent asserts it should have a penalty reduction because it had no prior OSHA citations. (Resp’t’s.Reply 2). There is no evidencein the recordof ahistory of prior violations.

LTS was a small employer with 15 employees. (Adm. Fact ¶ 12). The CO stated that the standard reduction for an employer of this size was considered but offered no explanation why no reductionfor sizehad been appliedto the proposed penalty. (Tr. 64-65).

On balance, the undersigned finds that anadjustmentwould be appropriate given the fact that the record contains no evidence of a history of violations and the employer was small.As the Commission stated inQuality Stamping Prods.Co,, 16 BNA OSHC 1927, 1929, (No. 91-414, 1994), “[t]he purpose of a penalty is to achieve a safe workplace, and penalty assessments, if they are not to become simply another cost of doing business, are keyed to the amount an employer appears to require before it will comply.” Thus, a reduction is applied due to the size of the company and apenalty of $95,500 is assessed.

As set forth above, the Secretary has proved Respondent violated section 5(a)(1) of the Act and a penalty of $95,500is assessed.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. SeeFed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

ORDER

           Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

Citation 1, Item 1, alleging aWillfulviolation ofsection 5 (a)(1) of the OSH Act isAFFIRMED and a penalty of$95,500is ASSESSED.

                                                                     _/s/Covette Rooney____________

COVETTE ROONEY

 ChiefJudge, OSHRC

Dated:June 6, 2022

            Washington, D.C.

----

1 IntheJoint Pre-HearingStatement,the parties set forth 14 Admitted Facts. These will be referenced as Adm. Fact ¶ in this document.

2 No affirmative defenseswere assertedin the Answer.

3 LTS did not call an expert witness at the hearing. Prior to the hearing,Secretaryfiled a Motion in Limine to Exclude the Deficient Report and Inadmissible Opinions ofTammy Blakeslee,Respondent’s proposed expert witness. The undersignedgranted Secretary’s Motion, excluding the opinions set forth in the proposed expert report(Report)andanytestimony from Ms. Blakeslee regarding the opinions set forth in theReport. Seetheundersigned’s October 19, 2021Order Granting Complainant’s Motion in Limine(October 19 Order).The undersigned foundthe Reportdid not satisfy the requirements of the June 1, 2021SchedulingOrder or Federal Rule of Civil Procedure 26(a) in that it did not include qualifications to provide expert testimony, methodology used to support the stated opinions,an indication of the subject matter experience, education, or specialized knowledgeof the proposed expert, nor opinions in the report that wouldassist the undersigned as a fact finder. SeeOctober 19 Order.

4 The same accommodation request was sent via email from Ms. Ariana Murrell-Rosario to the undersigned’s legal assistant on November 1, 2021.

5 Mr. Sano, Ms. Murrell-Rosario, and their witness, Ms. Nguyen, participated in the remote hearing from the home of Ms. Murrell-Rosario. Ms. Nguyen was sequestered in another room of the house before providing testimony. (Tr. 10, 12). 

6 Theundersignedtakes judicial notice of the President’s March 13, 2020declaration ofanational emergencyrelated to the coronavirus disease (COVID-19) outbreak. Proclamation 9994,85 Fed. Reg. 15337 (Mar. 18, 2020). “The court may judicially notice a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. Rule 201(b)(2). This document is an official document published in the Federal Register and thus, its accuracy cannot be reasonably questioned. Neither party offered this document into evidence; however, the Respondent directlyrefersto the March 13 Emergency Declaration and the Secretary acknowledges that the WHO and United States declared COVID-19 to be a public health emergency. (Resp’t’s. Br. 1-2).

7 Order 55rescindedGovernor’s Order No. 31 issued on May 1, 2020. (GX-2).

8 Fromthelink provided at page 2 of GX-3: “These sector specific COVID-19 workplace safety standards for Office Spaces are issued to provide businesses and other organizations operating within general use office spaces and workers in these office spaces with instructions to help protect against the spread of COVID-19.” (GX-3linkingtohttps://www.mass.gov/doc/sector-specific-workplace-safety-standards-phase-iii-step-1-for-office-spaces-to-address-covid/download).

9 As discussed further below, it is disputed whether this rear door was open when the CO arrived. The door in dispute is the door inside the storage closet that led to the outside, not the door from the mainofficearea into the storage closet. (Tr. 53-55, 159-60, 173). Ms. Murrell-Rosario referred to the door in dispute as the outer rear door. (Tr. 159-60, 173).

10 The document was titled, “Office OSHA Policy.” (RX-1).

11 Respondent did not cross-examine[redacted], Lisa Tobin, or Eugene Cusack.

12 Ms. Murrell-Rosario believed that spraying Lysol in the air every 3 hours would have a cumulative effectand kill anything floating in the air. (Tr. 175). There was no evidence to support Ms. Murrell-Rosario’s claim.

13 Ms. Murrell-Rosario claimed thatwhen the COcame into the LTS office,he would have seen her ventilation plan at work because theyspokewhilestanding near the open rear door.(Tr. 184). The undersigned finds the CO’s testimony,that the rear door was only opened after he asked about the ventilation,to be more credible than Ms. Murrell-Rosario’s claim therear door was open when the CO arrived at the LTS office. To be clear, the doorin disputeis the door that was within the storage closet, not the door from the main office area into the storage closet. The COphotographedthe open doorfrom the main office areainto the storage closet. (GX-8,at4). The COtestified that the rear door,that Ms.Murrell-Rosario referred toasthe outer rear door,was insidethis storage closet. (Tr. 53, 55, 159). In light of the extensive photographs the CO took upon his arrival,the undersigned finds thatifthe rear doorinside the storage closet been open, the CO would have photographed it. There was no photograph in evidence of the door inside the storage closet.

14 Ms. Murrell-Rosario described respiratory etiquette as having “people cough into their elbow” so they would not “expel a lot of pathogens in the environment.” (Tr. 180).

15  Respondent listed its sources for the office policy in an interrogatory response to the Secretary. (Tr. 35). “Identify each document that contains any recommendation or guideline pertaining to COVID-19 that you relied on to develop or implement precautionary measures at the Job Site between March 17, 2020 and March 17, 2021. Answer: NIOSH Hierarchy of Controls, OSHA regulations as pertains to workplace safety, and Hierarchy of Susceptibility for pathogens.” (GX-7, at15 ¶10).

16 Ms. Murrell-Rosario’s theory was that if Lysol was used “on a continual basis, you will create an atmosphere of positive charged ions that, if somebody is coming in, if they have some little virus, it will bind, immediately, within seconds, to the outer envelope of the virus and destroy it.” (Tr. 172). Secretary’s expertrejected this theory. (Tr. 134).

17 COGabby testified that thereardoor was notopen when he arrivedat LTS. He testified that thereardoor was notin the main tax preparation area. It was actually“in a back storage closet-typeof thing”(Tr. 55).I find that based upon thephotographs taken during his inspection,CO Gabby’s description of his inspectionwasconsistent and credible.(GX-8).

18 The undersigned notes that the transcriptreflects numerous times throughout the hearing when a “Female Voice”is transcribed.(Tr. 43, 68, 76-77, 80-82, 85-86, 95, 122-23, 129, 135, 139-40, 145, 152, 161). Forexample,the “Female Voice” coaches Attorney Sanoon how to operate Webexand make arguments.(Tr.75-76,80, 86,122-23, 139-40).

19 Dr. Tustin reviewed information from WHO, CDC,and peer-reviewed articles regardingtheeffectiveness of face coverings. (Tr. 106). Dr. Tustin’s assessment of the informationpublishedin the scientific community is thataconsensus of public health expertsfoundthat face coverings are beneficial in reducing the risk of COVID-19transmission. (Tr. 108-10).

20 The February 23, 2021 Cease-and-Desist Order directed LTS to “Sector Specific Workplace Safety Standards for Office Spaces to Address COVID-19” athttps://www.mass.gov/doc/sector-specific-workplace-safety-standards-phase-iii-step-1-for-office-spaces-to-address-covid/download). (GX-3,at2). 

21 Respondent argues that because the CO took no air samples at the LTS office there is no proof employees were exposed to COVID-19 hazards. (Resp’t’s. Br. 16). Respondent’s argument is inapt. Here, the hazard was thepotential for exposureat the LTS office. The amount of virus present at a particular moment is not relevant. As the expert testified, any encounter with an individual posed the risk of virus transmission. (Tr.114-15). Further, there was no know meansavailable for such a measurement. (Tr. 73).

22 As noted earlier, no expert testified to support Ms. Murrell-Rosario’s claims.

23 Respondent asserted the CO did not follow OSHA inspection procedures for ventilation deficiencies. (Tr. 70-71). This argument is rejected. OSHA’s technical inspection manual is a guide for OSHA’s compliance officers and does not establish any rights or defenses for employers. See Andrew Catapano Enters., Inc., 17 BNA OSHC 1776, 1780 (No. 90-0050, 1996) (consolidated) (OSHA’sManual “is not binding on the Secretary and does not create any substantive rights for employers.").

24 While not specifically at issue here,and not relevant to the outcome of this case, the undersigned notes state mandates that are “dual impact” regulations are not generally preempted by the OSH Act. See Steel Inst. of New York v. City of New York, 716 F.3d 31, 38 (2d Cir. 2013) (City’s crane regulations saved from pre-emption by federal OSHA because they applied everywhere, not just workplaces, and affected “both public safety and worker conduct”);see also, Gade v. Natl. Solid Wastes Mgmt. Ass'n,505 U.S. 88, 107 (1992) (“On the other hand, state laws of general applicability (such as laws regarding traffic safety or fire safety) that do not conflict with OSHA standards and that regulate the conduct of workers and nonworkers alike would generally not be pre-empted.”).

25 The cases LTS relieson for this premise are distinguished from the instant case by the duties of the employees and are inapposite here. See Amoco Oil Co.,No. 92-0361, 1993WL 157689) (O.S.H.R.C.A.L.J., May 10, 1993) (employees performing maintenance on valves containing hydrofluoric acid fumes) andColumbia Presbyterian Hosp., No. 92-298, 1996WL18880 (O.S.H.R.C.A.L.J., Jan. 2, 1996)(respirators required for employees providing patient care to tuberculosis patients). Further, in addition to being distinguishable from the case at hand, these cases are also nonprecedential ALJ decisions.See Pressure Concrete Constr., Co., 15 BNA OSHC 2011, 2016, n.5 (No. 90-2668, 1992) (An unreviewed ALJ decision does not constitute Commission precedent).

26 At https://www.osha.gov/laws-regs/standardinterpretations/2017-12-20 (accessed April 25, 2022).

27 At https://www.osha.gov/Publications/OSHA3767.pdf (accessed April 25, 2022).

28 “OSHA's COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought. Should the petitions for writs of certiorari be denied, this order shall terminate automatically. In the event the petitions for writs of certiorari are granted, the order shall terminate upon the sending down of the judgment of this Court.” Natl. Fedn. of Indep. Bus. v. OSHA, 142 S. Ct. 661, 666–67 (2022) (per curium).

29 See generally, Alaska Trawl Fisheries, Inc.,15 BNA OSHC 1699, 1704-05 (No. 89-1192, 1992) (“To the extent that the discussion inDillinghamwent beyond what was strictly necessary to adjudicate the issues presented by that case, it constitutedobiter dictum(remarks not necessary to decide the case) and therefore is not controlling here.”)

30 The penalty in the instant case was assessed after January 15, 2021, thus the statutory maximum of $136,532 and statutory minimum of $9,753 applies.  86 Fed. Reg. 2964, 2969-70 (Jan 14, 2021).

31 The Commissionis not bound to followthe Secretary’s penaltyandowes no deference to the Secretary’s proposed penalty. Hern Iron Works, Inc., 16 BNA OSHC 1619, 1621-23 (No. 88-1962, 1994).