\n<\/p>\n
Shortly after taking office, President Biden directed the Occupational Safety and Health Administration (\u201cOSHA\u201d) to increase its enforcement by \u201claunch[ing] a national program to focus OSHA Covid-19 related enforcement activities.\u201d\u00a0 Specifically, he adopted an executive order that instructed OSHA to initiate \u201ca 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.\u201d\u00a0 [Executive Order 13999, 86 FR 7211 (Jan. 26, 2021), Executive Order <\/a>\u00a0 This executive order further instructed OSHA to consider whether to issue a Covid-19 Emergency Temporary Standard by March 15, 2021.<\/p>\n The Ides of March have come and gone, but OSHA has implemented no such emergency temporary standard.\u00a0 It, instead, has established the National Emphasis Program-Covid-19 (\u201cNEP\u201d) Here <\/a> and has updated and replaced its former Interim Enforcement Response Plan for Covid-19 Here <\/a> (\u201cEnforcement Plan\u201d). The NEP designates higher hazard industries for OSHA\u2019s enforcement activities.\u00a0 The Enforcement Plan emphasizes in-person worksite inspections by the agency\u2019s compliance safety and health officers (\u201cCSHO\u201d).\u00a0<\/p>\n The NEP guides OSHA in the selection of sites for inspections.\u00a0 The Enforcement Plan further instructs CSHOs as to how they conduct their enforcement activities.\u00a0 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.<\/p>\n The Enforcement Plan emphasizes Covid-19 related inspections that involve deaths or multiple hospitalizations attributable to occupational exposures to Covid-19.\u00a0 It further instructs CSHOs to perform on-site workplace inspections where practical.\u00a0 The Enforcement Plan also includes detailed directions as to how CSHOs should conduct Covid-19 related investigations and inspections.\u00a0 Finally, it instructs them regarding the bases for citations issued to employers.<\/p>\n Generally, OSHA uses national emphasis programs as temporary measures that focus the agency\u2019s resources on particular hazards and high-hazard industries.\u00a0 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.\u00a0 It further implemented the NEP and Enforcement Plan immediately in workplaces located in states subject to federal OSHA enforcement, such as Missouri.\u00a0 Approximately 28 states and territories, however, have their own state or territory plans, such as Illinois.\u00a0 OSHA has strongly encouraged those states and territories to adopt the NEP.\u00a0 By May 11, 2021, they must notify OSHA whether they will adopt the NEP.<\/p>\n 1.<\/strong>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Which Employers Face the Heightened Risk of OSHA Covid-19 Related Inspections and Enforcement Activities?<\/strong><\/p>\n The NEP names three categories of primary target industries: healthcare workplaces, non-healthcare workplaces, and critical infrastructure.\u00a0 The specifically named healthcare primary target industries include:\u00a0 (a) physicians\u2019 offices, (b) dentists\u2019 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.\u00a0 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.\u00a0 The NEP has further designated the following non-healthcare critical infrastructure industries as primary targets:\u00a0 (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.\u00a0 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.<\/p>\n In addition, employers in industries other than those prioritized for OSHA enforcement in the NEP still face a higher risk of an OSHA inspection.\u00a0 President Biden has stated his intention to double the number of CSHOs.\u00a0 The more inspectors that OSHA has, the greater number of inspections that it will conduct.\u00a0 The resumption of onsite inspections pursuant to the NEP and Enforcement Plan will curtail the agency\u2019s use of hazard alert letters and desk audits.\u00a0 All employers have an increased likelihood of CSHOs visiting their workplaces to do onsite inspections.\u00a0<\/p>\n 2.<\/strong>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 How Can Employers Prepare for Covid-19 Related OSHA inspections?<\/strong>\u00a0<\/p>\n OSHA urges employers to develop and to implement a Covid-19 prevention program and to train their employees on the program\u2019s requirements.\u00a0 On January 29, 2021, the agency issued updated guidance to employers entitled:\u00a0 Protecting Workers:\u00a0 Guidance on Mitigating and Preventing the Spread of Covid-19 in the Workplace (\u201cGuidance\u201d) <\/a>.\u00a0 It gives employers a roadmap to follow to minimize workplace exposures to Covid-19 and OSHA citations if the agency inspects an employer\u2019s workplace because of either an employee complaint or the NEP and Enforcement Plan.\u00a0 The Guidance emphasizes OSHA\u2019s view that the most effective Covid-19 prevention programs include the input of workers and their representatives in the program\u2019s development and implementation at every step.\u00a0 It further urges employers to assign a workplace coordinator to act on the employer\u2019s behalf as the clearinghouse for all Covid-19 issues.\u00a0 Typically, an employer would name a manager or administrator to speak with one voice internally and as a single point of contact with OSHA.\u00a0 The Guidance also encourages employers to identify where and how workplace exposures to Covid-19 occur.\u00a0 It further recommends the identification of a combination of measures that will restrict the spread of Covid-19 in the workplace.\u00a0 Such measures include: eliminating the hazard, engineering controls, workplace administrative policies, personal protective equipment (\u201cPPE\u201d), and other measures.\u00a0 The Guidance provides the following examples:<\/p>\n Employers should, furthermore, both identify and consult with their workplace safety counsel.\u00a0 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.\u00a0 CSHOs typically visit a workplace without advance notice.\u00a0 They never tell the employer that it has a right to have its legal counsel represent it during an inspection.\u00a0 If the employer requests, however, the CSHO will delay the start of a workplace inspection by up to an hour to enable the employer\u2019s counsel to represent the employer during the inspection.\u00a0<\/p>\n 3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 What Statutory Violations Can Employers Expect OSHA to Cite as the Legal Basis of Covid-19 Related Citations?<\/strong><\/p>\n Before now, OSHA has issued citations to employers for Covid-19 related issues primarily under its respiratory, reporting and recordkeeping, and PPE standards.\u00a0 Both the Guidance and the NEP, however, state the agency\u2019s intention to issue citations alleging violations of the General Duty Clause of the Occupational Safety and Health Act (\u201cOSH Act\u201d), 29 U.S.C. \u00a7 654 (a) (1), Here<\/a>.\u00a0 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.\u00a0 OSHA may issue citations for violations of the General Duty Clause even if the agency has adopted no standards that address the specific hazard.\u00a0 To prove a General Duty Clause violation, OSHA must show that four conditions existed.\u00a0 First, a condition or activity in the workplace exposed the employer\u2019s workers to a hazard.\u00a0 Second, either the employer or the industry recognized the condition or activity as a hazard.\u00a0 Third, the hazard caused or was likely to cause either death or serious physical harm.\u00a0 Fourth, a feasible means to eliminate or otherwise reduce the hazard existed.<\/p>\n The NEP specifically identifies Covid-19 guidance issued by the Centers for Disease Control and Prevention (\u201cCDC\u201d) as \u201cone source of evidence of hazard recognition and potential feasible methods of abatement.\u201d\u00a0 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.\u00a0 Both the CDC\u2019s guidance and OSHA\u2019s guidance set minimum recognition levels for workplace Covid-19 related hazards and feasible ways to eliminate or otherwise mitigate such hazards.\u00a0 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<\/a> \u00a0No one knows whether OSHA will view double masking of the sort described in the CDD\u2019s report as establishing a feasible means of mitigating airborne Covid-19 spread in workplaces.<\/p>\n 4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 How Does OSHA Plan to Emphasize Anti-Retaliation Principles?<\/strong><\/p>\n As previously mentioned above, President Biden\u2019s executive order directed OSHA not only to develop a national enforcement plan to address Covid-19 workplace issues, but also to address \u201canti-retaliation principles.\u201d\u00a0 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. \u00a029 U.S.C. \u00a7 660 (c) Here <\/a>.\u00a0 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.\u00a0 Similarly, employers must allow workers to provide and to wear their own PPE, such as a respirator, face shield, gloves, or a surgical mask.\u00a0 The Guidance directs employers to notify employees of (a) their rights to a safe and healthful work environment, (b) the employer\u2019s representative to contact if they have workplace safety and health concerns, and (c) the employer\u2019s prohibition against any retaliation against any employee who raises such concerns.\u00a0 It also urges employers to offer a hotline or other means by which employees may voice their concerns anonymously.\u00a0<\/p>\n The NEP also makes a specific reference to President Biden\u2019s executive order and states that it \u201cwill include an added focus of ensuring that workers are protected from retaliation through information sharing and prompt referrals.\u00a0 If a worker complains to OSHA about Covid-19 related issues and requests an inspection, the NEP directs the agency to \u201c[i]nform workers of their protections from retaliation and refer them to Whistle blowers<\/a> for more information, including how to file a retaliation complaint.\u201d In addition, the NEP requires OSHA\u2019s area offices to refer all workers that allege retaliation to the Regional Whistleblower Protection Program.\u00a0 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.\u00a0<\/p>\n Conclusion<\/strong><\/p>\n The Biden Administration has taken prompt action to increase OSHA\u2019s enforcement activities relating to Covid-19 issues in the workplace.\u00a0 So far, OSHA has avoided the development of any Covid-19 related emergency temporary standards.\u00a0 It will, instead, use the OSH Act\u2019s General Duty Clause to cite employers for workplace Covid-19 hazards.\u00a0 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.\u00a0 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. \u00a0The 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\u2019s recommendations. \u00a0Finally, OSHA\u2019s new emphasis on \u201canti-retaliation principles\u201d will likely lead to more employers facing retaliation claims.\u00a0 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<\/a>.\u00a0 For more information about workplace Covid-19 issues, see other posts on this blog at\u00a0 https:\/\/theblogforbusinesslaw.com\/covid-19-disrupts-workplaces-and-confronts-employers-with-complicated-labor-and-employment-law-issues\/<\/a>, https:\/\/theblogforbusinesslaw.com\/how-does-the-collision-of-the-covid-19-pandemic-with-workplaces-pose-safety-issues-for-employers\/<\/a>, https:\/\/theblogforbusinesslaw.com\/how-does-the-law-regulate-mass-layoffs-and-plant-closings\/<\/a>, and https:\/\/theblogforbusinesslaw.com\/what-questions-do-employers-need-to-ask-about-covid-19-vaccinations\/<\/a>. \u00a0<\/p>\n<\/p><\/div>\n\n
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