Prepare for tougher OSHA COVID-19 enforcement

On his first full day in office, President Joe Biden issued an executive order directing the Occupational Safety and Health Administration (OSHA) to take additional measures to protect workers from COVID-19.

The executive order calls for OSHA to issue revised guidance to employers on workplace safety during the COVID pandemic, consider whether temporary emergency standards on COVID are necessary, review current OSHA enforcement efforts related to COVID and launch a national program to focus OSHA enforcement efforts associated with COVID on violations that put the largest number of workers at serious risk.

According to the executive order, OSHA issued revised guidance to employers on Jan. 29. It contains advisory recommendations intended to assist employers in providing a safe and healthful workplace. Most employers are likely familiar with, or have already implemented, many of the recommended key measures, which include:

• Separating and sending home infected or potentially infected people from the workplace
• Implementing physical distancing
• Installing barriers where physical distancing cannot be maintained
• Requiring the use of face coverings
• Improving ventilation
• Using personal protective equipment (PPE) where necessary
• Providing supplies for good hygiene practices
• Performing routine cleaning and disinfection.

The revised guidance also urges employers to implement a workplace COVID prevention program, stating that this is the most effective way to mitigate the spread at work. OSHA details 16 elements that should be included in an effective COVID prevention program. Some notable features include:

• Assignment of a workplace coordinator
• Identification of where and how workers might be exposed to COVID at work and measures that will limit the spread
• Protections for workers at higher risk
• Establishment of an effective communication system and training on COVID policies and procedures in a language workers understand
• Providing guidance on screening and testing
• Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-related hazards
• Making a COVID vaccine or vaccination series available at no cost to all eligible employees

OSHA specifically states that the guidance is not a standard or regulation and creates no new legal obligation. OSHA does not currently have a COVID standard to enforce. Still, the agency can utilize other established standards or Section 5(a)(1) of the Occupational Safety and Health Act, known as the General Duty Clause. It requires employers to provide their workers with a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm.

In fact, since April 2020, OSHA has conducted over 300 inspections that have resulted in COVID-related citations, with proposed penalties totaling $4,034,288. The citations primarily allege violations of OSHA’s PPE, respiratory protection, recordkeeping and reporting standards, and the General Duty Clause.

Employers must be prepared for enhanced OSHA enforcement efforts in light of the executive order. The national program would likely take the form of a National Emphasis Program (NEP), which focuses OSHA’s enforcement resources on particular hazards and high-hazard industries. Additionally, OSHA is expected to issue a COVID emergency temporary standard (ETS) by the March 15 deadline established in the executive order. Any ETS will likely contain many, if not all, of the health and safety measures covered by the revised guidance, including a requirement for employers to develop and implement a COVID prevention program.

Employers are encouraged to review and follow the recommendations outlined in OSHA’s revised COVID guidance. By implementing these protective measures, employers will not only help to control the spread of COVID in the workplace, but they will also put themselves in a better position to comply with the requirements of the anticipated ETS and be more prepared for OSHA’s increased, targeted enforcement efforts.

Russell P. Bailey is a member of the litigation section at Rose Law Firm. The opinions expressed are those of the author.