The federal Occupational Safety and Health Administration (OSHA) has been criticized by some for its response to the COVID-19 pandemic. Some labor unions and other interest groups have been vocal about what they perceive as insufficient action by OSHA to address COVID-19-related workplace hazards. The most recent criticism has come from within the federal government.
In January 2021, President Joe Biden issued an executive order directing OSHA to ramp up its enforcement efforts related to COVID-19 and to consider whether to issue an emergency temporary OSHA standard imposing specific safety mandates related to COVID-19. More recently, the Office of the Inspector General at the U.S. Department of Labor issued a report with recommendations that OSHA review its COVID-19-related inspection activities and implement more aggressive and effective inspection and enforcement protocols. The inspector general recommended that OSHA improve its inspection strategies by prioritizing inspections at higher risk workplaces, evaluate the effectiveness of remote inspections and evaluate whether an emergency temporary standard directed at COVID-19 hazards should be issued. It is reasonable to expect that this criticism and scrutiny will result in more aggressive OSHA inspections and citations as the pandemic continues.
OSHA response to the pandemic
OSHA typically enforces workplace safety through issuance of citations for violation of specific OSHA safety and health standards. Generally, citations are issued as a result of onsite workplace inspections, which are usually triggered as a result of employee complaints or OSHA’s normal generally scheduled procedures for inspections. Currently, OSHA has no safety or health standard designed specifically to address hazards like those caused by the COVID-19 pandemic. To date, OSHA citations issued to address COVID-19-related hazards have tended to be based on existing OSHA standards, such as those governing respiratory safety, personal protective equipment or OSHA’s “general duty clause.” Under the general duty clause, OSHA can cite an employer for a hazard even if it is not covered by a specific OSHA standard, but only if the employer can be shown to be disregarding workplace hazards that are clearly recognized by industry. Also, because of the interest in reducing person-to-person contact, OSHA has conducted many of its inspections during the pandemic remotely, rather than onsite.
As a result of all of these factors, despite the fact that OSHA has received a substantial number of employee complaints alleging COVID-19 workplace hazards, OSHA citations and inspections are down from previous levels. This has been a primary reason for criticism of OSHA action during the pandemic. To be clear, OSHA has issued a significant number of guidance documents for best practices to reduce workplace hazards related to COVID-19 exposure. But those guidance documents do not carry the force of law and cannot be the specific basis for a citation.
OSHA has still not issued a temporary emergency standard. However, OSHA has launched a National Emphasis Program (NEP) directed at COVID-19 workplace hazards. An NEP is an OSHA program directing OSHA area offices to focus on particular hazards. Under the OSHA NEP for COVID-19 hazards, OSHA area offices are directed to focus inspection activities on workplaces where COVID-19 issues have been raised and where COVID-19 hazards are most likely to occur, such as in health care and in workplaces where there is frequent and sustained contact among workers.
What to expect
With or without an emergency temporary standard, OSHA will continue to inspect for COVID-19-related hazards and respond to COVID-19-related employee complaints. The recent and increasing criticism of OSHA’s enforcement efforts is likely to result in a more aggressive posture from the agency. Expect that OSHA will step up its onsite inspections, rather than continue a pattern of remote inspections. This is particularly likely as COVID-19 vaccines become more widely available. It is also reasonable to expect that in its inspections related to COVID-19 issues, OSHA will be more inclined to issue citations.
OSHA review of employee complaints about alleged COVID-19 hazards will likely have a sharper focus and be more likely to result in an inspection citations. OSHA citations can come with steep penalties and the related cost, time and effort to defend. More importantly, OSHA citations can create an impression that your company has not taken adequate steps to address COVID-19 hazards in the workplace. With that impression can come the potential for damaged employee relations, public relations and even potential legal challenges.
First, keep your eyes out for a COVID-19-related emergency temporary standard from OSHA. Next, review all of OSHA’s published COVID-19 guidance for best practices to address COVID-19 hazards. Be aware that OSHA requires employers to evaluate each case of an employee contracting the virus whether or not facts suggest that the virus was contracted at work. In most cases, facts will not be sufficient to draw that connection. However, where facts strongly indicate a workplace connection, such as a cluster of cases within a brief time frame among people who work closely together, OSHA expects employers to treat the COVID-19 case as recordable in its OSHA logs. Most important, employers at this point would be wise to do a top to bottom review of the protocols that they have had in place over the past year for addressing pandemic-related workplace hazards as too often internal enforcement efforts start to become more lax over time. If that has happened, it is time to reengage management so that you are well prepared if you do have an OSHA inspection.