Don’t Jump the Gun on COVID-19 Recovery: Employers and Business Owners Should Review OSHA Compliance
By: Benjamin Merrill
In February, a U.S. House sub-committee launched an investigation into how major meat processors and OSHA responded to COVID-19. During the prior administration, OSHA issued only eight COVID-related citations. With a new administration in charge, we anticipate renewed energy and enforcement from OSHA in the coming year. Employers should make a conscious effort to review their compliance with OSHA’s safety guidelines—even as we are finally beginning to see some light at the end of this coronavirus tunnel.
Three major OSHA-related changes have occurred since the Biden administration took over in January:
Executive Order on Temporary Emergency Standard (Pending)
On January 21, 2021, the President issued an Executive Order on Protecting Worker Health and Safety. OSHA was ordered to consider whether an emergency temporary standard requiring more stringent workplace safety enforcement was necessary. To date, OSHA has not determined such standards to be necessary, but with a few days remaining before OSHA’s deadline, we may yet see a decision from OSHA. If OSHA does decide to enforce an emergency temporary standard, we could expect it to look like one of the models adopted by California, Michigan, Oregon, or Virginia.
Why does it matter?
If this is passed, employers will have to get their workplaces up to speed quickly to avoid unnecessary OSHA citations. While OSHA’s COVID Guidelines are not currently mandatory, we are seeing Courts look to compliance with CDC and OSHA guidelines as a means of assigning liability to employers in lawsuits by employees. OSHA Compliance
- New OSHA Guidelines
On January 29, 2021, OSHA updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. This update took guidance from six steps to sixteen, adding much more specific recommendations for employers. While these are guidelines and
Why does it matter?
Employers should review and follow these guidelines for the foreseeable future, despite progress on the vaccine front and new guidance from the CDC for vaccinated persons. If an emergency standard is implemented, these guidelines will likely become mandatory. Moreover, not all workers will have access to the vaccine at the same time. Until vaccinations are widespread, the best strategy is for employers to continue abiding by the OSHA guidelines. It is also still unclear whether vaccines will need to be annually administered. Consequently, even employees who have received a vaccine could still eventually require another dose.
- New CDC Guidelines for Vaccinated Persons.
On March 8, the CDC issued Interim Guidance for Fully Vaccinated People. This update says that fully vaccinated people can visit without masks and without physical distancing. While this is sincerely wonderful news, this should not allow employers to become complacent. OSHA Guidance still recommends treating vaccinated and unvaccinated workers the same. Employers should continue to enforce COVID prevention measures.
Why does it matter?
Employers will likely begin to see some pushback from employees who have received vaccines wanting to be maskless and not have to social distance at work. Although progress is certainly being made, employers may well still see OSHA citations for failing to ensure their employees are safe. Although OSHA fines for COVID under the Trump administration were small, with the Congressional investigation taking place, we anticipate those days are over.
With all of this in mind, it is important for employers to hang in there and ensure they continue to follow conscious safety protocols to meet their ongoing obligations under the Occupational Safety and Health Act. While states are beginning to lift COVID-19 or “Coronavirus” restrictions, employers must think carefully and intentionally about how they return to normal to protect the health and safety of their workers and avoid unnecessary OSHA citations.
If you have questions about OSHA compliance, or if you are facing an OSHA citation, please reach out to one of BrownWinick's Employment & Labor attorneys for assistance.
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