OSHA takes a whack at COVID-19 workplace compliance
Until now, businesses trying to stay open and comply with public health orders related to highly infectious COVID-19 received their federal how-to guidance from the Centers for Disease Control and Prevention, but thanks to an executive order by President Joe Biden, the CDC now has a partner in guidance and eventually compliance.
Biden has directed the Occupational Safety and Health Administration (OSHA) to update previously developed coronavirus protocols and to evaluate the need for implementation of new emergency COVID-19 regulations over which it can enforce compliance, and that has costly implications for noncompliant businesses. The agency has already published some initial guidance, and Dan Kaplan, an attorney with the Madison office of Foley & Lardner LLP, says there will be a price to pay in fines for noncompliant employers if OSHA should implement additional emergency regulations. In addition, Kaplan states that OSHA could use its recently issued guidance as a basis for expectation of employer conduct as it relates to general obligations and “best practices” under OSHA’s General Duty clause.
Kaplan, who co-chairs Foley & Lardner’s Labor and Employment Practice Group, says OSHA can go in one of two directions from this point. First, there is the usual rule-making process in which proposed regulations are published and public comments are invited, typically over a period of 60 days, before final regulations are issued.
Secondly, there is the possibility OSHA could issue new regulations on an emergency basis without public comment. Emergency regulations could be challenged in court, but violators will be subject to fines, as they would for violations of other OSHA safety rules, unless a court implements a stay on the application of the regulations.
At the moment, Kaplan isn’t sure which path OSHA will take, and he’s doesn’t know whether the agency will issue regulations at all. Kaplan suspects that any regulations (if issued) will not be significantly different than the guidance already provided by the CDC and OSHA. However, as noted, when OSHA publishes regulations (as opposed to guidance), businesses can be held much more accountable for providing healthy workplaces.
“Initially, I think that if OSHA decides new and additional regulations are needed, then it will go the emergency route,” he notes.
When OSHA assesses a penalty for a regulatory violation, the penalties that may be assessed for each alleged violation can range as follows:
- For an “other-than-serious” violation, up to $13,653 per violation;
- For a serious violation, also up to $13,653 per violation;
- For a willful violation, up to $136,532 per violation; and
- For a repeat violation, also up to $136,532 per violation.
The OSHA penalty structure is updated each year consistent with legislation was passed in December 2015, which allows for the agency to increase the caps for penalties based on increases in the consumer price index. The new penalty structure is typically released by OSHA in January of each year, and the current penalty updates were released by OSHA on Jan. 8, 2021, with an effective date of Jan. 15, 2021.
According to an executive summary of OSHA guidance released so far, the agency’s direction is intended to help employers and workers in workplace settings — outside of health care — identify the risks of being exposed to or contracting COVID-19 at work and to help them implement appropriate control measures.
Separate guidance for health care in the form of CDC guidance and emergency response settings (also CDC guidance) already exist. OSHA has additional industry-specific guidance that provides recommendations as well as descriptions of mandatory safety and health standards. The agency notes that these recommendations are advisory in nature and intended to assist employers in providing a safe and healthy workplace.
The recent OSHA guidance, issued on Jan. 29, also advises employers to implement COVID-19 prevention programs in the workplace, and states that the most effective programs will not only engage workers and their union or other representatives in the program’s development, but should also include the following elements:
- Conducting a hazard assessment;
- Identifying a combination of measures that limit the spread of COVID-19 in the workplace;
- Adopting measures to ensure that workers who are infected or potentially infected are separated and sent home from the workplace; and
- Implementing protections from retaliation for workers who raise COVID-19 related concerns.
Additional detail pertains to implementing physical distancing, installing barriers where physical distancing can’t be maintained, and using face coverings and personal protective equipment. Other guidance covers improving ventilation, providing supplies that maintain good hygiene, and directions for routine cleaning and disinfection.
Prior to Biden’s Jan. 21 executive order, Kaplan notes that OSHA had not issued any new temporary or other regulatory standards applicable to workplaces aimed specifically at COVID-19. Instead, OSHA’s principal deputy assistant secretary under the Trump administration, Loren Sweatt, testified to Congress in 2020 that OSHA did not believe such new standards were necessary because the agency already has standards in place to protect employees and employers “who fail to take appropriate steps to protect their employees.” Such standards, Sweatt noted, include conducting hazard assessments, ensuring sanitation and cleanliness, providing PPE, and requiring training and education.
However, as the number of new COVID-19 cases and fatalities climbed by year’s end — a development that vaccines are perhaps only starting to mitigate — Kaplan notes that it’s “very likely” that OSHA, under the Biden administration, may move in a different direction than that followed by the Trump administration, with more of a focus on enforcement.
Kaplan further notes that it will be important to keep checking for updated OSHA direction because the agency will continue to update its guidance to reflect new developments in science, best practices, and standards. This includes updated guidance relevant to particular industries or workplace situations.
While the guidance could well become enforceable regulations, the agency notes that it is advisory and not a standard or regulation that creates no new legal obligations. OSHA has prepared this guidance, much of it modeled after what the CDC has already issued, for planning purposes. Employers and workers are advised to use it to help identify risks of being exposed to and contracting COVID-19 in the workplace and to determine any appropriate control measures.
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