On March 26 the Occupational Safety and Health Administration kicked off ramped-up enforcement of its Covid 19 guidelines, initially targeting employers in the healthcare industry.
Employers in warehousing and distribution, however, need to take immediate note because they are among those next on the list for increased scrutiny.
On Jan. 21, President Biden 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 — and also Emergency Temporary Standards (ETS) regulations for employers, which as of this writing have yet to be issued.
On March 12, the agency announced a new National Emphasis Program (NEP) for Covid 19 enforcement action that targets employers in what it considers to be higher hazard industries. (AA, 4-1-21, P. 5) 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 inspections involving deaths or multiple hospitalizations due to occupational exposures.
Although both the NEP and ERP only apply to workplaces in states were 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 changed its ETS into permanent regulations).
OSHA said it is choosing to first target industry sectors generating the highest number of complaints, such as healthcare, which includes hospitals, health care providers, assisted living facilities and home health care services.
Other industries targeted are general warehousing and storage, temporary help and staffing agencies, discount department stores, full- and limited-service restaurants, supermarkets and grocery stores, and meat slaughtering and processing plants.
Secondary targets are industries where workers come into routine contact with large numbers of co-workers and the general public and are considered to be at higher risk. Among these are manufacturing – including food and beverage manufacturing – construction, commercial and industrial equipment maintenance, and transportation services.
What Employers Need to Do
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, to make sure they are in accordance to the 6,000-word guidance document OSHA that was issued on Jan. 29, titled Mitigating and Preventing the Spread of Covid 19 in the Workplace (https://www.osha.gov/coronavirus/safework).
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 on the guidance document linked to above –
employers need to be up to date on guidelines issued by the Centers for Disease Control and Prevention (CDC), that also 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, the lack of written rules is no protection against enforcement actions, 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 written 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 employees were exposed to, failed to recognize a hazard that caused or was likely to cause death or serious physical harm, and did not adopt a feasible method that could have corrected that hazard.
Also, employers must be wary of the CDC’s ever-shifting guidelines. OSHA intends to use these to show that a recognizable hazard exists, and that feasible means to abate the hazard existed. For example, a recent CDC guidance requires employers to obtain informed consent from employees before testing them for Covid 19.
In February, the CDC also 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 online a study it says found that wearing two masks – one surgical mask and one cloth mask – can significantly reduce the spread of Covid 19. It is not known whether OSHA inspectors will be looking for masks being used this way, even if it seems unlikely (See P. 3).
However, Sigel warns, “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, workplace 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, notes that the NEP also signals a renewed interest by OSHA in whistleblower cases arising 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 explicitly 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.