How to Respond to OSHA’s COVID Enforcement
Employers now find themselves in the crosshairs of the Occupational Safety and Health Administration’s (OSHA) amped-up enforcement of its COVID-19 guidelines and need to take immediate action to avoid the potential flood of citations and penalties expected to result.
It all began on the first full day of Joe Biden’s presidency when he issued an executive order directing OSHA to come up with new COVID-19 guidance document for employers by the end of January—which it did—to be followed by Emergency Temporary Standards (ETS) regulations for employers, something that Biden’s labor union allies had been demanding since early in the pandemic.
The President called for the ETS to be released no later than mid-March, but as of this writing they have yet to be issued by OSHA. The White House reported that it is currently in the process of reviewing the draft ETS, but it did not reveal what is holding up their publication.
According to Courtney Malveaux, an attorney with the law firm of Jackson Lewis, labor unions and progressive organizations have indicated that they expect the ETS to guarantee pay and benefits to workers who need to take leave because of potential COVID-19 exposures or diagnoses.
However, it is not clear whether the safety agency has the legal authority to determine employer pay and leave practices at the federal level, something that is normally left to OSHA’s sister agency, the Wage and Hour Division of the Department of Labor (DOL), and if that might be the cause of the hang-up in getting the ETS out.
On March 12, the agency also announced creation of a new National Emphasis Program (NEP) for COVID-19 enforcement action that targets employers in what it considers to be higher hazard industries. The NEP, which went into effect immediately, mandates that 5% of each OSHA region’s total inspections must be related to COVID-19. Across the agency, this is expected to amount to about 1,600 total inspections.
NEPs are temporary programs that focus OSHA’s resources on particular hazards and high-hazard industries. Other NEPs adopted since 2008 have dealt with combustible dust, hazardous machinery, hexavalent chromium, lead, primary metal industries, process safety management, shipbreaking, crystalline silica, and trenching and excavation.
At the same time the agency announced the new NEP, it also chose to update and replace its former interim Enforcement Response Plan (ERP) for COVID-19, which is designed to prioritize in-person worksite inspections by OSHA Compliance Safety and Health Officers (CSHOs). The ERP directs OSHA’s Area Directors and CSHOs to “prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures.”
Although both the NEP and ERP only apply to workplaces in states where employers are subject to federal enforcement, OSHA said that it also “strongly encourages” adoption of the NEP by the 28 states and territories that have state plans in place. States such as California, Michigan, Oregon, Washington State and Virginia already have adopted their own ETS (and Virginia recently made its ETS into permanent regulations).
Industry sectors targeted
OSHA said it is choosing to target those industry sectors that have been generating the highest number of complaints, such as healthcare, which includes hospitals, healthcare providers, assisted living facilities and home healthcare services. Other industries targeted are general warehousing and storage, temporary help and staffing agencies, discount department stores, both full- and limited service restaurants, supermarkets and grocery stores (excluding convenience stores), and poultry and meat slaughtering and processing plants.
Secondary targets encompass industries where workers come into routine contact with large numbers of co-workers and the general public and as a result are considered to be at higher risk of contracting the virus. Among these are manufacturing (including food and beverage manufacturing), construction, commercial and industrial equipment maintenance, and transportation services.
If your company falls into any of these industry classifications, attorneys advise you to review and update your COVID-19 safety documents, programs and procedures, especially to make sure they are in accordance with the 6,000-word guidance document ordered by President Biden that OSHA issued on Jan. 29, titled Mitigating and Preventing the Spread of COVID-19 in the Workplace.
Employers also need to keep an eye out for changes that are regularly made in other federal and state guidance and regulatory documents. In addition to OSHA’s anticipated ETS, which is likely to be based largely on the guidance document linked to above, employers need to ensure they are up to date on the workplace guidelines issued by the Centers for Disease Control and Prevention (CDC), that have been updated repeatedly over the past year.
Up until now, OSHA has cited employers primarily under its respiratory, reporting and recordkeeping, and personal protective equipment (PPE) standards. However, employers need to recognize that the lack of written rules or standards is no protection against additional enforcement actions OSHA can choose to take, warns attorney Gabrielle Sigel of the Jenner & Block law firm.
Keep in mind that the agency’s enforcement officers can cite employers for violations under the General Duty Clause of the Occupational Safety and Health Act, which requires employers to maintain a safe and healthy workplace regardless of whether or not OSHA has put specific rules in place to deal with a specific issue.
Sigel points out that violations can arise if employers are found to have failed to keep the workplace free of a hazard and employees were exposed, have failed to recognize a hazard that caused or was likely to cause death or serious physical harm, and had not adopted a feasible method that could have corrected the hazard.
Guidelines keep changing
Also, employers need to be wary when it comes to the CDC’s ever-shifting guidelines. OSHA intends to use these to help it show that a recognizable hazard exists in a workplace, and that feasible means to abate the hazard existed at the time which the employer could have implemented. For example, a recent CDC guidance requires employers to obtain informed consent from employees before testing them for COVID-19.
Just in the past month alone the CDC changed its quarantine guidelines to hold that fully vaccinated persons who meet certain criteria will no longer be required to quarantine following an exposure to someone with COVID-19 under certain conditions. The CDC also recently published a study online showing that wearing two masks—one surgical mask and one cloth mask—can significantly reduce the spread of COVID-19. Whether OSHA inspectors will look for masks being used this way is not currently known.
However, Sigel warns, make no mistake about it, “OSHA has proclaimed that it intends to take aggressive enforcement measures with respect to a broad range of businesses that have been operating in their usual workplaces during the pandemic. Employers in these businesses should prepare accordingly.”
Employment attorneys also stress that employers should take the time right now to assess their compliance with existing OSHA standards that pertain to PPE, hazard assessments, respiratory protection, safety signage, access and exposure to medical records, and injury and illness recordkeeping and reporting.
Melanie L. Paul, an attorney with the law firm of Jackson Lewis, also notes that the NEP signals a renewed interest by OSHA in whistleblower cases that arise from employee complaints regarding COVID-19. These are expected to multiply because of the increase in onsite inspections stemming from employee complaints as well as from direct referrals to OSHA’s Whistleblower Protection Program.
The NEP emphasizes that workers requesting inspections, complaining about disease exposure, reporting injuries or illnesses, or suffering from any kind of retaliation are covered by the whistleblower protection statutes OSHA enforces.
“Given a recent DOL Office of Inspector General’s report on OSHA’s handling of whistleblower claims in 2020, employers should expect more aggressive OSHA investigations of such claims,” Paul predicts.