OSHA's role to expand in combating the COVID-19 pandemic

Until just recently, the Occupational Safety and Health Administration (OSHA), the federal agency responsible for keeping employees safe at work, has played a very limited role in doing so during the COVID-19 pandemic. That is about to change, however, with President Joe Biden’s issuance of an executive order on January 21, 2021, which calls the agency to action in protecting American workplaces.

Prior to President Biden's executive order, OSHA’s enforcement role during the pandemic has been quite “hands off” and deferential to employers. Examples include:

• OSHA did not have a specific standard focused upon COVID-19. This was despite organized labor’s repeated pleas that the agency issue an emergency temporary standard, a request that OSHA denied. Indeed, the U.S. Court of Appeals for the District of Columbia Circuit Court upheld the agency’s denial.
• From March through August 2020, federal and state occupational safety and health agencies received more than 33,000 COVID-19-related employee complaints. Of these, about two-thirds were summarily closed by August 30, 2020, typically after a single letter or phone call to the employer about recommended COVID related guidelines.
• According to its website, OSHA issued its first COVID-related citations in mid-July – four months after the pandemic took hold in earnest – for three workplaces and one more in August. In September 2020, the issuance of citations accelerated somewhat, and reached 85 by October 10, 2020. 

In contrast to OSHA’s rather sluggish start in pursuing COVID-19-related workplace issues, by December 2020, 14 states had issued executive orders with very specific worker protection requirements, along with some issuing emergency temporary standards with requirements directed at protecting the workplace from COVID-19. The first to do so was Virginia, which many other states followed (California, Kentucky, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, and Washington). The general requirements included and continue to include:

• Ensuring physical distancing of at least six feet between employees and their coworkers and customers.
• Providing face masks to all employees if maintaining six-foot social distance is not possible.
• Requiring customers to wear face masks.
• Providing employees with other personal equipment in addition to face coverings.
• Improving ventilation.
• Providing employees with regular access to hand-washing soap.
• Having hand sanitizer readily available.
• Requiring deep cleaning after COVID cases are discovered in the workplace.
• Notification protocols to workers when cases are found. 

Now, in light of the recent executive order, OSHA is set on a much more aggressive path to issue workplace standards related to COVID-19 and to actively pursue violations. Of note, the order calls for:

• Issuance within two weeks of the date of the order (again, issued on January 21, 2020), of revised guidance to employers on workplace safety during the COVID-19 pandemic.
• Consideration as to whether any emergency standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, to issue them by March 15, 2021.
• Review of the enforcement efforts of OSHA related to COVID-19 and identify any short-, mid-, and long-term challenges that could be made to better protect workers and ensure equity in enforcement.
• Launch of a 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.
• Coordinate with the Department of Labor’s Office of Public Affairs and Office of Public Engagement in order to conduct a multilingual outreach campaign to inform workers and their representatives of their rights under the law. This campaign is required to include collaboration with labor unions, community organizations, and industries. 

As a result of the president’s directives in the executive order, employers can expect to see a significant increase in workplace safety inspections and ultimately citations. Of particular interest to the agency are the healthcare, hospice, assisted living and industrial workplaces. Additionally, employers can expect an increase in retaliation claims under OSHA’s anti-retaliation provisions as employees are more emboldened to bring forth alleged COVID related workplace safety complaints.

The Labor and Employment team at McDonald Hopkins will be continuing to follow this development and update on the status of order and its implementation accordingly.