Shortly after taking office, President Biden directed the Occupational Safety and Health Administration (“OSHA”) to increase its enforcement by “launch[ing] a national program to focus OSHA Covid-19 related enforcement activities.” Specifically, he adopted an executive order that instructed OSHA to initiate “a national program to focus OSHA enforcement efforts related to Covid-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles.” [Executive Order 13999, 86 FR 7211 (Jan. 26, 2021), Executive Order This executive order further instructed OSHA to consider whether to issue a Covid-19 Emergency Temporary Standard by March 15, 2021.
The Ides of March have come and gone, but OSHA has implemented no such emergency temporary standard. It, instead, has established the National Emphasis Program-Covid-19 (“NEP”) Here and has updated and replaced its former Interim Enforcement Response Plan for Covid-19 Here (“Enforcement Plan”). The NEP designates higher hazard industries for OSHA’s enforcement activities. The Enforcement Plan emphasizes in-person worksite inspections by the agency’s compliance safety and health officers (“CSHO”).
The NEP guides OSHA in the selection of sites for inspections. The Enforcement Plan further instructs CSHOs as to how they conduct their enforcement activities. In this case, the NEP and the Enforcement Plan in tandem identify which types of workplaces and the sorts of enforcement procedures that OSHA has established as its highest Covid-19 related safety priorities.
The Enforcement Plan emphasizes Covid-19 related inspections that involve deaths or multiple hospitalizations attributable to occupational exposures to Covid-19. It further instructs CSHOs to perform on-site workplace inspections where practical. The Enforcement Plan also includes detailed directions as to how CSHOs should conduct Covid-19 related investigations and inspections. Finally, it instructs them regarding the bases for citations issued to employers.
Generally, OSHA uses national emphasis programs as temporary measures that focus the agency’s resources on particular hazards and high-hazard industries. In this case, OSHA stated its expectation for the plan to remain in effect for a maximum of one year, although the agency may amend or cancel the program in response to further developments in the pandemic. It further implemented the NEP and Enforcement Plan immediately in workplaces located in states subject to federal OSHA enforcement, such as Missouri. Approximately 28 states and territories, however, have their own state or territory plans, such as Illinois. OSHA has strongly encouraged those states and territories to adopt the NEP. By May 11, 2021, they must notify OSHA whether they will adopt the NEP.
1. Which Employers Face the Heightened Risk of OSHA Covid-19 Related Inspections and Enforcement Activities?
The NEP names three categories of primary target industries: healthcare workplaces, non-healthcare workplaces, and critical infrastructure. The specifically named healthcare primary target industries include: (a) physicians’ offices, (b) dentists’ offices, (c) home health care services, (d) ambulance services, (e) hospitals, (f) nursing care facilities, (g) residential intellectual and developmental disability facilities, (h) continuing care retirement communities, and (i) assisted living facilities for the elderly. The NEP lists the following non-healthcare industries among the primary targets: (1) meat processing, (2) animal slaughtering, (3) poultry processing, (4) supermarkets and grocery stores, (5) discount department stores, (6) general warehousing and storage, (7) temporary help services, (8) full-service restaurants, (9) limited-service restaurants, and (10) correctional institutions. The NEP has further designated the following non-healthcare critical infrastructure industries as primary targets: (i) agriculture, forestry, fishing, and hunting, (ii) construction, (iii) manufacturing, (iv) nursery, garden center, and farm supply stores, (v) general merchandise stores, (vi) transit and bus transportation, (vii) school bus transportation, (viii) special needs transportation, (ix) postal service, (x) electronic and precision equipment repair and maintenance, and (xi) commercial and industrial machinery and equipment repair and maintenance. Those workplaces that OSHA inspected for Covid-19 related hazards in 2020, furthermore, receive no exemption from inspections done pursuant to the NEP and Enforcement Plan.
In addition, employers in industries other than those prioritized for OSHA enforcement in the NEP still face a higher risk of an OSHA inspection. President Biden has stated his intention to double the number of CSHOs. The more inspectors that OSHA has, the greater number of inspections that it will conduct. The resumption of onsite inspections pursuant to the NEP and Enforcement Plan will curtail the agency’s use of hazard alert letters and desk audits. All employers have an increased likelihood of CSHOs visiting their workplaces to do onsite inspections.
2. How Can Employers Prepare for Covid-19 Related OSHA inspections?
OSHA urges employers to develop and to implement a Covid-19 prevention program and to train their employees on the program’s requirements. On January 29, 2021, the agency issued updated guidance to employers entitled: Protecting Workers: Guidance on Mitigating and Preventing the Spread of Covid-19 in the Workplace (“Guidance”) . It gives employers a roadmap to follow to minimize workplace exposures to Covid-19 and OSHA citations if the agency inspects an employer’s workplace because of either an employee complaint or the NEP and Enforcement Plan. The Guidance emphasizes OSHA’s view that the most effective Covid-19 prevention programs include the input of workers and their representatives in the program’s development and implementation at every step. It further urges employers to assign a workplace coordinator to act on the employer’s behalf as the clearinghouse for all Covid-19 issues. Typically, an employer would name a manager or administrator to speak with one voice internally and as a single point of contact with OSHA. The Guidance also encourages employers to identify where and how workplace exposures to Covid-19 occur. It further recommends the identification of a combination of measures that will restrict the spread of Covid-19 in the workplace. Such measures include: eliminating the hazard, engineering controls, workplace administrative policies, personal protective equipment (“PPE”), and other measures. The Guidance provides the following examples:
- Eliminating the hazard by separating and sending home infected or potentially infected workers;
- Implementing physical distancing in all communal work areas (including remote work and telework);
- Installing barriers where any one or more of the workspace, fixtures, or furniture make physical distancing unfeasible;
- Suppressing the spread of the hazard by the use of face coverings;
- Improving ventilation;
- Using applicable PPE to protect workers from exposure;
- Providing the supplies necessary for good hygiene practices; and
- Performing routine cleaning and disinfection.
Employers should, furthermore, both identify and consult with their workplace safety counsel. Such a counsel can advise the employer regarding its development and implementation of its prevention program and represent the employer during any OSHA workplace inspections. CSHOs typically visit a workplace without advance notice. They never tell the employer that it has a right to have its legal counsel represent it during an inspection. If the employer requests, however, the CSHO will delay the start of a workplace inspection by up to an hour to enable the employer’s counsel to represent the employer during the inspection.
3. What Statutory Violations Can Employers Expect OSHA to Cite as the Legal Basis of Covid-19 Related Citations?
Before now, OSHA has issued citations to employers for Covid-19 related issues primarily under its respiratory, reporting and recordkeeping, and PPE standards. Both the Guidance and the NEP, however, state the agency’s intention to issue citations alleging violations of the General Duty Clause of the Occupational Safety and Health Act (“OSH Act”), 29 U.S.C. § 654 (a) (1), Here. It requires employers to maintain a workplace free from recognized hazards that cause or are likely to cause either death or serious harm to their employees. OSHA may issue citations for violations of the General Duty Clause even if the agency has adopted no standards that address the specific hazard. To prove a General Duty Clause violation, OSHA must show that four conditions existed. First, a condition or activity in the workplace exposed the employer’s workers to a hazard. Second, either the employer or the industry recognized the condition or activity as a hazard. Third, the hazard caused or was likely to cause either death or serious physical harm. Fourth, a feasible means to eliminate or otherwise reduce the hazard existed.
The NEP specifically identifies Covid-19 guidance issued by the Centers for Disease Control and Prevention (“CDC”) as “one source of evidence of hazard recognition and potential feasible methods of abatement.” Thus, employers must stay current with the evolving guidance issued by the CDC regarding Covid-19 both generally and specifically where the CDC has issued guidance for certain industries, such as healthcare, and its more general guidance for workplaces and businesses. Both the CDC’s guidance and OSHA’s guidance set minimum recognition levels for workplace Covid-19 related hazards and feasible ways to eliminate or otherwise mitigate such hazards. For example, the CDC recently published a report to the effect that cloth masks and medical procedure masks when worn simultaneously reduce exposure from infected wearers and decrease the exposure of uninfected wearers. Here No one knows whether OSHA will view double masking of the sort described in the CDD’s report as establishing a feasible means of mitigating airborne Covid-19 spread in workplaces.
4. How Does OSHA Plan to Emphasize Anti-Retaliation Principles?
As previously mentioned above, President Biden’s executive order directed OSHA not only to develop a national enforcement plan to address Covid-19 workplace issues, but also to address “anti-retaliation principles.” The OSH Act, furthermore, prohibits employers from firing workers or otherwise discriminating against them for their participation in protected occupational safety and health related activities. 29 U.S.C. § 660 (c) Here . For example, employers must avoid taking any adverse action against an employee for raising a reasonable concern about Covid-19 related infection control to the employer, its agent, other employees, a governmental agency, or to the public by any one or more of print, online, social, or other media. Similarly, employers must allow workers to provide and to wear their own PPE, such as a respirator, face shield, gloves, or a surgical mask. The Guidance directs employers to notify employees of (a) their rights to a safe and healthful work environment, (b) the employer’s representative to contact if they have workplace safety and health concerns, and (c) the employer’s prohibition against any retaliation against any employee who raises such concerns. It also urges employers to offer a hotline or other means by which employees may voice their concerns anonymously.
The NEP also makes a specific reference to President Biden’s executive order and states that it “will include an added focus of ensuring that workers are protected from retaliation through information sharing and prompt referrals. If a worker complains to OSHA about Covid-19 related issues and requests an inspection, the NEP directs the agency to “[i]nform workers of their protections from retaliation and refer them to Whistle blowers for more information, including how to file a retaliation complaint.” In addition, the NEP requires OSHA’s area offices to refer all workers that allege retaliation to the Regional Whistleblower Protection Program. It further directs CSHOs to tell workers of their right to file a whistleblower complaint if they experience retaliation for providing assistance to OSHA during an inspection, filing a safety and health complaint with OSHA, reporting a work-related injury or illness, or complaining about Covid-19 exposure or any other workplace hazards to the employer.
Conclusion
The Biden Administration has taken prompt action to increase OSHA’s enforcement activities relating to Covid-19 issues in the workplace. So far, OSHA has avoided the development of any Covid-19 related emergency temporary standards. It will, instead, use the OSH Act’s General Duty Clause to cite employers for workplace Covid-19 hazards. OSHA will use its own Guidance and the guidance and reports published by the CDC as the basis for determining hazard recognition and the feasibility of eliminating or mitigating a hazard. The evolution of such guidance over the course of the Covid-19 pandemic means that employers must monitor the OSHA and CDC websites vigilantly to stay current with recognized hazards and how to eliminate or reduce them. The biggest take away from the NEP and Enforcement Plan concerns the need for all employers, and especially those in industries that OSHA has identified as primary targets, to develop and to implement a Covid-19 prevention program that adopts the Guidance’s recommendations. Finally, OSHA’s new emphasis on “anti-retaliation principles” will likely lead to more employers facing retaliation claims. For more information about how the NEP, Enforcement Plan, and Guide affect your workplace, please contact Gerry Richardson, (314) 552-0453, grichardson@evans-dixon.com. For more information about workplace Covid-19 issues, see other posts on this blog at https://theblogforbusinesslaw.com/covid-19-disrupts-workplaces-and-confronts-employers-with-complicated-labor-and-employment-law-issues/, https://theblogforbusinesslaw.com/how-does-the-collision-of-the-covid-19-pandemic-with-workplaces-pose-safety-issues-for-employers/, https://theblogforbusinesslaw.com/how-does-the-law-regulate-mass-layoffs-and-plant-closings/, and https://theblogforbusinesslaw.com/what-questions-do-employers-need-to-ask-about-covid-19-vaccinations/.
