By: Phillip M. Perry, Contributor
Employers trying to avoid costly OSHA citations are facing new challenges in the form of heightened enforcement activity and greater liability for workplace COVID infections. To lessen their exposure, businesses are retooling their operating environments to ensure compliance with state and federal mandates.
“I think you’re going to see much more aggressive OSHA enforcement under the Biden administration,” said former OSHA head Edwin G. Foulke, Jr., now a partner in the Atlanta office of Fisher & Phillips. He views a recent presidential executive order, “Protecting Worker Health and Safety” as a leading indicator of a more robust regulatory fervor.
The new federal posture may include a larger OSHA oversight staff. “The Biden administration said it wants to double the number of inspectors,” said William K. Principe, partner in the Atlanta office of Constangy, Brooks, Smith & Prophete (constangy.com). “While we don’t know if they will hire that many, it’s reasonable to assume there will be some increase. During the last administration vacancies weren’t always filled, so OSHA ended up being below the number of federal inspectors that had existed for a very long time.”
More inspectors mean more boots on the ground. OSHA observers expect an increase in the rate of inspections, along with more citations and higher penalties. And all this comes at a time when COVID is raising troublesome issues of its own. “The pandemic, with its greater safety requirements, has increased the risk of OSHA violations,” said Gary Heppner, a California-based independent OSHA safety advisor. He added that inspectors will be looking closely at how businesses are spacing personnel, mandating masks and cleaning the work environment.
OSHA is expected to pay increasing attention to building sites. “Construction falls are among the most frequent causes of workplace injuries or fatalities,” said Mark D. Norton, Director of Norton Safety Services, Tucson, AZ. “Because of that, OSHA tends to focus inspection activity on that area.”
Observers cite an influx of new workers as a key reason for the spike in accidents. “In the economic downturn of 2007 and 2008, many employees left the construction industry,” said Norton. “When the economy rebounded, people were hired without the same level of experience and knowledge. Less trained workers and an increasing demand for construction is a recipe for more accidents.”
OSHA is also taking greater interest in machine shops, another environment with high accident rates, according to Heppner. Here COVID is having an effect: Workers, long required to wear safety glasses while using drill presses or hand drills, are now expected to add face shields and maintain appropriate distances from others. That can be difficult in restricted environments where people are working in close quarters. Any resulting laxity in safety considerations can spark illnesses and OSHA citations.
Most employers want their workers to be safe and healthy. And given the higher OSHA profile, businesses will be making a special effort to meet state and federal standards. That means conforming to the “General Duty Clause” of the Occupational Safety and Health Act, requiring workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.”
While the imprecise nature of the general duty clause allows leeway for employers to account for varying local conditions, it also leaves plenty of room for inspectors to find unexpected violations. The lack of specific guidelines prompted OSHA to issue a comprehensive guidance document earlier this year. “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” lists steps employers can take to reduce potential spread. (Businesses can access the document at osha.gov/coronavirus).
Although the new guidelines are advisory in nature, OSHA observers expect specific regulations soon. “OSHA will likely issue an emergency temporary standard for workplaces,” said Foulke. This standard will carry the force of law and employers will be fined for non-compliance with its terms.
How strict will the regulations be? That is still to be seen. “The emergency temporary standard is not expected to be as employer averse as the OSHA regulations in California, but will likely resemble the Virginia standard, which follows CDC guidance,” said Foulke. Employers will likely be required to conduct workplace risk assessments and maintain written COVID-related action plans to include social distancing, masks, sanitation and training.
“One thing I think you’re going to see during the Biden administration is a focus on musculoskeletal disorders (ergonomics, repetitive motions, lifting) and combustible dust,” added Foulke. “Also, I think sometime this year OSHA will go back to requiring that 250-plus employers in certain industries file not only 300A Summaries but also the 300 logs and the First Report of Injury forms.”
Employer organizations will likely litigate onerous OSHA rules. “Trade associations have been successful in the past in getting injunctions against OSHA regulations deemed outside the agency’s jurisdiction or overly burdensome,” noted Douglas E. Witte, who represents businesses in labor and employment law matters at Madison, Wisc., -based Boardman & Clark. “Sometimes the regulations are modified, or simply delayed for a year or longer.”
If an employee comes down with COVID and misses work time or goes to the hospital, is the illness recordable as work related? The answer is often less than clear. “Up until now, OSHA has not been pushing too hard on employers who claim COVID-19 infections occurred outside the workplace,” said Witte. Employers have been operating under fairly liberal standards, thanks to OSHA guidance issued in the spring of 2020 that allowed COVID illnesses to be categorized as not work related if an “alternative explanation” could account for the infections.
Unfortunately, the term “alternative explanation” is vague, and OSHA does not provide examples. “The guidance is being interpreted, by some, as indicating that if the employer can point to some exposure away from the workplace, then the case can be deemed not work-related,” said Principe. Others are even taking the position that because COVID is being spread everywhere an infection is not work-related unless the employee has continually commuted in their own car, stayed in their own house, and not gone to a grocery store or interacted with the public in any way.
That kind of liberal interpretation, though, skirts the edge of justice. “I think you need more concrete evidence that the employee was exposed to an infected person away from work,” cautioned Principe. “Perhaps their spouse, children or people they socialized with have COVID, or perhaps they attended a super-spreader event.” Faulty categorizations can be costly. “OSHA issues citations to employers who fail to properly record or report cases,” said Principe. “The agency is often tipped off by whistle blowers, or they get word of infections through hospitals or public health departments.” Penalties for serious violations start at $13,653, although the amount is sometimes reduced in the event of a good faith history. Citations for willful or repeated issues start at $136,532.
Certainly, there is no need to record cases that are clearly not work-related. While an employer may do so out of fear of a citation, being too inclusive can backfire. “Over-reporting can spark an OSHA inspection when the entries from an employer’s logs are entered on their 300A Summaries,” said Foulke. “Those are available for review not only to OSHA but also to plaintiff’s lawyers and community activists like Common Cause. Skewed numbers can impact a business’s ability to get future work from clients.”
So how about those cases that fall into a grey area? “My advice to employers would be that in the case of doubt, record or report the event,” said Principe. “You can always explain the facts, saying that you don’t believe it is work-related for the following reasons, but that you are including the case out of an abundance of caution. This will protect you from a citation.”
Many OSHA observers believe the Biden administration will tighten criteria, determining that more infections occurred in the business environment. There may be a return to earlier CDC guidance which mandated that an illness be designated work related if the employee had been within six feet of another COVID-infected worker for a total of at least 15 minutes. “The agency may start tracking infections down to employer facilities if they can do so and support the change by claiming they are trying to halt the spread of COVID,” said Principe.
While the prospect of an OSHA inspection and citations can disturb any business owner, the federal agency can also be helpful. “Many businesses believe that every interaction with OSHA is negative,” said Norton. “They don’t realize that OSHA also provides consultative services at both the federal and state level.”
At the employer’s request, said Norton, OSHA will inspect the workplace for problem areas. While there is no charge for the service, the employer has to agree to fix whatever OSHA finds. “It’s all confidential, so nothing uncovered by the inspectors gets shared with the compliance side.”
That proactive approach can prevent costly citations down the road. “It’s very important to take the right steps to reduce the risk of infection in the workplace,” said Principe. “This will keep employees from getting sick and the employer out of trouble. I encourage businesses to track the OSHA and CDC websites on a regular basis. Know what the recommendations are. Then if OSHA shows up at the door, everything will be in order.” WMHS
Phillip M. Perry is an award-winning freelance writer based in New York City. His byline has appeared over 3,000 times in the nation’s business press. He maintains a website at www.EditorialCalendar.Net.
Determine Your OSHA Readiness
How well have you secured your workplace against the risk of accidents and COVID infections? Find out by taking this quiz. Score 10 points for each step taken. Then total your score and check your rating.
Conducted a workplace risk assessment
Implemented measures to control risks
Developed a written accident and infection prevention plan
Assigned a COVID-19 mitigation plan coordinator
Trained employees on the plan and on preventive measures
Enforced the use of face coverings
Implemented temperatures/symptoms screening
Implemented cleaning protocols
Coordinated use of breaks and lunchrooms
Ensured the enforcement of sick leave policies
What’s your score? 80 or more: Congratulations. You have gone a long way toward making your business environment safer for your employees. Between 60 and 80: It’s time to fine tune your prevention procedures. Below 60: Your business is at risk. Take action on the suggestions in the accompanying story.
Source: Constangy, Brooks, Smith & Prophete.
Controlling the OSHA Inspection
While OSHA has the right to conduct inspections of business premises, employers need to know and exert their own rights. “Just because a person has a government badge, that doesn’t mean they get to do whatever they want,” said former OSHA head Edwin G. Foulke, Jr., now a partner in the Atlanta office of Fisher & Phillips.
During an opening conference with inspectors, Foulke suggests employers set out guidelines such as the following:
At least one management person needs to be present when OSHA inspectors visit the work site.
One other management level person must be present when OSHA inspectors interview any supervisor or manager.
The employer must be allowed to bring in their own industrial hygienist, as well as be present if OSHA does any kind of monitoring of air or noise.
During their inspections, OSHA representatives will look for the following evidence of violations:
There was a hazardous condition
The hazard was recognized
The hazard was causing or likely to cause death or serious physical harm
There was a feasible method to correct the hazard.
Finally, businesses should treat OSHA inspectors with respect while not offering more data than the law requires. “Some employers think that if they tell OSHA everything they know and they give every document they have, that somehow that’s going to make things better,” said Foulke. “It never does.”