Employers trying to avoid costly Occupational Safety & Health Administration (OSHA) citations face new challenges in the form of heightened enforcement activity and greater liability for workplace COVID-19 infections.
To lessen their exposure, businesses are retooling their operating environments to ensure compliance with state and federal standards.
OSHA issued guidance for the mitigation of the spread of COVID-19 in all workplaces. The intention is to reduce the chances of contracting COVID-19 by employees who are unvaccinated or otherwise at-risk of infection because of conditions such as a prior transplant, or prolonged use of corticosteroids or other immune-weakening medications.
As a general rule, OSHA does not suggest employers take steps to protect fully vaccinated people, unless other federal or local laws apply. For unvaccinated or at-risk workers, OSHA recommendations include the following:
• Separating from the workplace all infected people, all people experiencing COVID-19 symptoms and any unvaccinated people who have had close contact with someone with COVID-19
• Implementing physical distancing
• Maintaining ventilation systems
• Properly using face coverings or personal protective equipment
Last summer, OSHA added these two recommendations:
• Fully vaccinated people should wear masks to protect the unvaccinated in areas of high community transmission.
• Fully vaccinated people who have close contact with people with COVID-19 should wear masks for up to 14 days unless they have a negative coronavirus test at least three to five days after such contact.
While OSHA observers had long expected the agency to issue regulations for workplace disease mitigation in the form of a so-called “emergency temporary standard” (ETS), the guidance mentioned here is only advisory in nature and, in the words of the agency, “creates no new legal obligations.”
Last June, the agency did release an ETS mandating protective procedures for workers in health care facilities. Early this year, the Supreme Court struck down OSHA’s vaccine-or-test mandate for employers with more than 100 workers, while letting stand a similar mandate for health care facilities. Employers in all industries must continue to comply with pre-existing mandatory OSHA standards.
Observers see the recent OSHA activity as indicative of a more robust regulatory fervor in general.
“I think you’re going to see much more aggressive OSHA enforcement under the Biden administration,” says Edwin Foulke Jr., former OSHA head who is now a partner in the Atlanta office of Fisher & Phillips.
The new federal posture may also include a larger OSHA oversight staff.
“The Biden administration says it wants to double the number of inspectors,” says William Principe, partner in the Atlanta office of Constangy, Brooks, Smith & Prophet. “While we don’t know if they will hire that many, it’s reasonable to assume there will be some increase. During the last administration, vacancies weren’t always filled, so OSHA ended up being below the number of federal inspectors that had existed for a very long time.”
More inspections
More inspectors means more boots on the ground. OSHA observers expect an increase in the rate of inspections, along with more citations and higher penalties.
OSHA is expected to pay increased attention to building sites.
“Construction falls are among the most frequent causes of workplace injuries or fatalities,” says Mark Norton, director of Norton Safety Services in Tucson, Arizona. “Because of that, OSHA tends to focus inspection activity on that area.”
Observers cite an influx of new workers as a key reason for the spike in accidents.
“In the economic downturn of 2007 and 2008, many employees left the construction industry,” Norton says. “When the economy rebounded, people were hired without the same level of experience and knowledge. Less trained workers and an increasing demand for construction is a recipe for more accidents.”
OSHA is also taking greater interest in machine shops, another environment with high accident rates, according to Gary Heppner, a California-based independent OSHA safety advisor. COVID-19 is having an effect in these environments: Workers, long required to wear safety glasses while using drill presses or hand drills, are now expected to add face shields and maintain appropriate distances from others in locations with unvaccinated or at-risk workers. That can be difficult in restricted environments where people are working in close quarters. Any resulting laxity in safety considerations can spark illnesses and OSHA citations.
OSHA rules
Most employers want their workers to be safe and healthy. And given the higher OSHA profile, businesses will make a special effort to meet state and federal standards.
That means conforming to the “general duty clause” of the Occupational Safety & Health Act, requiring workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.”
While the imprecise nature of the general duty clause allows leeway for employers to account for varying local conditions, it also leaves room for inspectors to find unexpected violations.
“One thing I think you’re going to see during the Biden administration is a focus on musculoskeletal disorders – ergonomics, repetitive motions, lifting – and combustible dust,” Foulke says.
Employer organizations will likely litigate any onerous OSHA rules.
“Trade associations have been successful in the past in getting injunctions against OSHA regulations deemed outside the agency’s jurisdiction or overly burdensome,” says Douglas Witte, who represents businesses in labor and employment law matters at Wisconsin-based Boardman & Clark. “Sometimes, the regulations are modified or simply delayed for a year or longer.”