This article is excerpted from portions of a presentation by Eric J. Conn, founding partner chair of the OSHA Workplace Safety Practice Group at the law firm Conn Maciel Carey LLP, Washington, DC (202-715-6244). He spoke in July at CONVEY ‘21 conference in Omaha, NE.
On his first full day in office, President Biden issued an executive order focused on OSHA. That was a huge deal. It was the first time that a president has issued a Day One executive order to OSHA.
But it was not entirely surprising, since Joe Biden’s 2020 campaign focused almost entirely on getting the nation past the COVID-19 pandemic, which is, in large measure, a workplace health crisis. Included in the Jan. 21 executive order:
• OSHA had to become more aggressive in enforcement on the COVID front. Biden wanted to see more pandemic-related inspections and citations.
• OSHA had to very quickly launch a COVID National Emphasis Program (NEP). Originally, the NEP was to cover a very broad swath of industries, but that was changed in mid-July to cover only the health-care and a few other high-risk industries. The good news is we (the grain industry) are no longer on the list, but we could still see inspections under the program triggered by employee complaints or reported COVID-19 outbreaks or deaths.
OSHA was directed to update its COVID-related workplace guidance, which had been issued during the Trump administration. It had been months since that was last updated, despite evolving science and significant changes to the guidance from the Centers for Disease Control (CDC).
OSHA did that in 10 days. It was almost as if they had been writing it in the background and waiting for someone new (Biden) to come along and ask for it.
The final section of Biden’s executive order told OSHA to consider whether an emergency temporary standard (ETS) was needed, and if so, to issue one by March 15.
OSHA delivered an ETS to the White House Office of Management and Budget (OMB) on April 27 (a month late), and it sat there at OMB for two more months. Meanwhile, we in the industry were flooding the White House with requests for meetings to explain why we didn’t need to be covered by this standard. The White House held more than 50 stakeholder meetings to talk about a rule that nobody had seen at that point.
For once, the federal government actually listened to us. When the ETS was finally unveiled this summer, it was focused exclusively on the health care industry. That was excellent news for the rest of industry.
The decision to limit the ETS to the health care industry has been challenged by the AFL-CIO union and other worker advocates in the federal DC Circuit Court. If that’s successful, the court could require OSHA to apply the ETS to every workplace in the nation, as OSHA originally intended. Alternatively, in the face of a surge in COVID cases because of the Delta variant, OSHA could, on its own, revisit that decision and expand the ETS to all industries.
Guidance. The same day that OSHA revealed its ETS, it also released another round of new guidance intended for all non-health care workplaces. What we know now is that the guidance originally was intended to be the ETS for everybody else.
One thing the guidance does is shift the focus to unvaccinated and other high-risk individuals in the workplace. The guidance also tried to create incentives for employees to get vaccinated. The last thing it did was to amplify information from the CDC on the best ways to manage the pandemic in the workplace.
Among the major recommendations in the guidance:
• Provide paid time off for the employee to get vaccinated and to recover from potential ill effects of the vaccine. Within the framework of OSHA’s General Duty Clause, OSHA will be looking at ways you as an employer have created an atmosphere conducive to getting a vaccination, or conversely have created obstacles or disincentives against it.
• The guidance also talks about continuing quarantine requirements but only for non-vaccinated individuals who have had close contact with persons with COVID-19. For vaccinated individuals, only those who are exhibiting COVID symptoms, and of course, anyone who tests positive would still have to quarantine as the CDC recommends.
• The guidance talks about implementing physical distancing, but only for non-vaccinated employees. People are asking about the conference room. Do we have to take chairs out like we did last year? Can we put people in there together? OSHA has been clear that you can have a non-vaccinated person a foot away from a vaccinated person, as long as you are keeping two non-vaccinated persons at least six feet from each other.
• You need to provide non-vaccinated employees with face coverings.
• With all of these recommendations, a big challenge for employers is how do you do any of this without knowing whether an individual has been vaccinated? This is where OSHA has really copped out. The guidance talks about enforcing these things without specifying whether or how to verify vaccination status.
So I read into the guidance an implicit expectation by OSHA that you make a reasonable effort to verify employees’ vaccination status, which can be a very unpleasant and awkward thing to do. The law is clear that employers may ask whether employees have received the COVID vaccine, but you may not ask why an employee has declined to get vaccinated – that could reveal ADA-protected disability information. A good place to look for how ti verify vaccination status meeting OSHA’s expectations and without running afoul of other worker privacy protections is OSHA’s ETS for the health-care industry, which is pretty flexible in that regard.
Some additional suggested actions from OSHA’s workplace guidance:
• Suggest that all unvaccinated customers and guests wear a face covering.
• Perform routine cleaning and disinfection. Disinfection is way less of a consideration than it was a year ago. There was some early misperception about surface transmission of COVID-19, where everyone was using chemicals on a special list multiple times a day.
Now, OSHA is specifying that you disinfect work areas only if you know of a confirmed case in the area within the past 24 hours. Beyond that, OSHA is just looking for cleaning with regular soap and water once a day in high-touch areas, for example, a control panel used by multiple employees or tools that are shared among the workforce.
• In terms of ventilation systems, OSHA is not talking about installing anything new or upgrading existing systems, but rather making sure equipment originally installed at your facility is operating as designed.
• Record and report work-related COVID-19 cases as applicable.
• Set up retaliation protections.
• Set up an anonymous complaint system.
For about 30 years, the maximum penalty for a serious violation was stuck at $7,000, but during the Obama/Biden administration, a law was passed that resulted in OSHA’s maximum penalty authority increasing every year by the percentage growth of the Consumer Price Index over the past year, usually between 1% and 2%. We’re up to about $14,000 for a serious violation now and $137,000 for each willful or repeat violation. OSHA’s enforcement teeth are getting sharper.
Nobody wants a willful violation, of course, which in some cases can be prosecuted criminally, but the real strategy OSHA has used to become a more feared agency has been to find and cite more repeat violations. Indeed, OSHA has implemented a series of policy changes over the last dozen years to systematically find and cite more repeat violations.
Historically, OSHA treated each workplace as an individual, independent establishment. Now, OSHA treats multiple workplaces in a single company as one big workplace, so that a violation found in one location can serve as the basis for a repeat violation for similar citations issued.
Historically, OSHA looked back only three years for past violations that may serve as the basis for new repeat violations, but it changed that to look back five years. Then they decided five years was just a policy. Why not 5-1/2 years or six years, or really, as far back as OSHA has been issuing citations: 50 years?
Next was the idea of proactive targeting. You go back to the places that have past violations for followup inspections. If OSHA is going to be in the workplace, even if there are no employee complaints, you can turn that into an emphasis program inspection. And even if you negotiate a violation down to a serious or other-than-serious, if you find it at another company location, that can become a $137,000 repeat violation.
This is not just my jaded defense lawyer paranoia. The percentage of OSHA citations characterized as repeat has climbed consistently over the past two decades and now run about 5% of all OSHA citations.
Emphasis programs. There was a really dire situation in the grain industry back around 2008 following a wet harvest. OSHA didn’t know a lot about the grain industry then, but they did know they were getting a lot of calls about engulfment deaths. So the agency became super-aggressive toward the grain industry launching grain enforcement emphasis programs in every grain-producing region in the country.
More than a dozen years later, despite our efforts to convince OSHA to rein in these programs, showing that they have been successful in reducing deaths, all of these emphasis programs remain active. c
Every company in this industry is on the list for a programmed inspection under one of these emphasis programs, and you’re going to see them. These inspections are done according to a compliance directive, which you can review. If you have not read it yourself, you should. The document is a road map for how these inspections will be conducted. OSHA is handing you their playbook; go read it.
Emphasis program evaluations typically evaluate:
• Hazards associated with grain storage; milling operations; fertilizer, feed, and chemical operations; and equipment repair or maintenance.
• Engulfment and entanglement hazards during bin entry and other hazards in bins and boot pits such as atmospheric, mechanical, etc.
• Fire and explosion hazards created by combustible dust.
• Falls from bins and decks or rolling stock.
• Other areas such as machine guarding, noise, and electrical safety.
Enforcement tactics. Between COVID funding and other budget increases, we’re looking at $250 million more for OSHA to use for increased enforcement and staffing.
One piece of legislation to watch out for is the Protect America’s Workers Act. This is something that has been in the works for years but never gets over the finish line. But now, with the Democrats controlling the House, Senate, and White House, it is something to monitor.
It would increase civil penalties by a huge amount, but more importantly, it would increase the opportunities to apply criminal penalties to individual managers. Criminal sanctions would increase from misdemeanors to felonies, which makes it more likely prosecutors would take up these cases.
If you are in the SHARP or VPP programs, in which companies with outstanding safety programs are singled out for special treatment, these programs will be under assault in this administration. OSHA thinks they are too easy to get into, too hard to get kicked out of, and provide too much relief, such as exemptions from programmed inspections.
We’re already seeing a return to aggressive “regulation by shaming,” which we saw under the Obama administration. When OSHA issues a citation, they often put out a scathing press release: “Here’s another employer forcing workers to choose between their lives and their paycheck.” This punishes the employer based on allegations, before the employer has an opportunity to defend itself.
Finally, I would be shocked if we did not see some action on a heat illness standard. We’re already seeing some standards being adopted in state plans including Oregon, Washington, and California. Federal OSHA has said it will get involved, and this will be a big deal for the grain industry.
Ed Zdrojewski, editor