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OSHA Launches Emphasis Program for COVID-19

Tuesday, March 16, 2021

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The U.S. Department of Labor’s Occupational Safety and Health Administration has launched a national emphasis program focusing on enforcement efforts on companies that put the largest number of workers at risk of contracting COVID-19.

The program is the Department’s response to President Joe Biden’s executive order on worker health and safety.

“This deadly pandemic has taken a staggering toll on U.S. workers and their families. We have a moral obligation to do what we can to protect workers, especially for the many who have no other protection,said Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick.

This program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure.

According to OSHA, NEP inspections will enhance the agency’s previous COVID-19 enforcement efforts and will include some follow-up inspections of worksites inspected in 2020. The program includes monitoring the effectiveness of OSHA’s enforcement and guidance efforts and will remain in effect for up to one year from its issuance date, though OSHA has the flexibility to amend or cancel the program as the pandemic subsides.

Ed Brown, public domain via Wikimedia Commons

The U.S. Department of Labor’s Occupational Safety and Health Administration has launched a national emphasis program focusing on enforcement efforts on companies that put the largest number of workers at risk of contracting COVID-19.

Though this isn’t a state requirement, OSHA “strongly encourages” states to adopt the NEP. States must notify federal OSHA within 60 days.

Additionally, in a related action, OSHA has updated its Interim Enforcement Response Plan to prioritize the use of “on-site workplace inspections where practical, or a combination of on-site and remote methods.” OSHA says that it will use remote-only inspections if the agency determines that on-site inspections cannot be performed safely.

On March 18, OSHA will rescind the May 26, 2020, memorandum on this topic and this new guidance will go into and remain in effect until further notice.

“OSHA will ensure that its Compliance Safety and Health Officers have every protection necessary for onsite inspections,” the Department said. “When conducting on-site inspections, OSHA will evaluate all risk and utilize appropriate protective measures, including appropriate respiratory protection and other necessary personal protective equipment.”

About the Executive Order

The order was issued in a slew of provisions on Biden’s first day in office and directed OSHA to issue updated, national guidance on workplace safety regarding COVID-19 within two weeks as well as revisit an ETS. The order aimed to streamline the safety initiatives, such as incorporating one checklist for federal compliance versus the guidelines varying state by state. If OSHA decided to implement an ETS, it would have needed to do so by March 15.

At the time of the Executive Order, both the AFL-CIO and the Associated General Contractors of America came out in support of the measure, with the AGC also responding in caution.

Our worry is that a possible ETS would include measures that have little to do with protecting workers and a lot to do with advancing the president’s avowed bias toward organized labor,” said Brian Turmail, Vice President of Public Affairs at the AGC. "So, the short answer is, it depends on the standard.

The AFL-CIO has long been a proponent of a national safety plan, and sued OSHA last summer in an effort to force the administration to create an ETS.

The U.S. Court of Appeals for the D.C. Circuit rejected the lawsuit, however, siding with OSHA, which contended that the systems and guidelines in place were enough to protect workers and an emergency safety rule was unwarranted.

The AFL-CIO filed the lawsuit on May 18, asking that the agency issue an emergency temporary standard, which is supposed to be reserved for when workers are in grave danger due to new hazards.

“It’s truly a sad day in America when working people must sue the organization tasked with protecting our health and safety,” said AFL-CIO President, Richard Trumka, at the time.

“But we’ve been left no choice. Millions are infected and nearly 90,000 have died, so it’s beyond urgent that action is taken to protect workers who risk our lives daily to respond to this public health emergency. If the Trump administration refuses to act, we must compel them to.”

On June 11, a three-judge panel found that OSHA has the authority to decide whether to issue new rules during a pandemic.

“In light of the unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, see 29U.S.C. § 654(a), the OSHA reasonably determined that an ETS is not necessary at this time,” the order reads.

In response to the ruling, the AFL-CIO was critical of the judges while OSHA and other industry groups praised the decision.

“More than 2 million of America’s working people are infected, and more than 110,000 have died,” Trumka said in the latest statement. “An unprecedented pandemic calls for unprecedented action, and the court’s action today fell woefully short of fulfilling its duty to ensure that the Occupational Safety and Health Act is enforced.”

Solicitor of Labor Kate O'Scannlain and Principal Deputy Assistant Secretary for OSHA Loren Sweatt issued a statement that read: “We are pleased with the decision from the D.C. Circuit, which agreed that OSHA reasonably determined that its existing statutory and regulatory tools are protecting America's workers and that an emergency temporary standard is not necessary at this time. OSHA will continue to enforce the law and offer guidance to employers and employees to keep America's workplaces safe."

Moreover, Associated Builders and Contractors Vice President of Health, Safety, Environment and Workforce Development Greg Sizemore and National Association of Home Builders Chief Executive Officer Jerry Howard issued a joint statement reacting to the ruling as well stating that construction sector safety is their No. 1 priority.

“We applaud the D.C. Circuit’s decision, which affirms that OSHA’s comprehensive response to the COVID-19 outbreak currently eliminates the need for an emergency temporary standard for infectious diseases and COVID-19 covering all employees,” the statement read.

“The government is learning new information about COVID-19 and how best to mitigate related hazards on an almost daily and sometimes even hourly basis, which is why a static, intransigent rule would not be an appropriate response. OSHA’s resources are better deployed by developing timely and situational-specific guidance documents, which can be adjusted and adapted as the agency and public health authorities better understand the pandemic.”

Inspector General Report

On Feb. 25, a report was issued from the Department of Labor’s Inspector General that says that the Occupational Safety and Health Administration has not provided the level of oversight needed to keep workers safe during the COVID-19 pandemic.

The report found that, compared to 2019, OSHA received 15% more complaints overall but conducted 50% fewer inspections. In addition, the federal agency issues 295 violation citations related to its 176 COVID-19-related complaints, while states issued 1,679 citations related to 756 similar complaints.

The construction industry was reportedly one of the sectors with the highest numbers of COVID-19 safety complaints last year, with 297.

The reason for the reduced level of inspections and subsequent citations is attributed to the reduction in person-to-person contact and therefore in-person inspections, despite the knowledge that OSHA’s physical presence on a jobsite typically results in accelerated mitigation of hazards.

At the time, the Inspector General made several recommendations, including:

  • Prioritize very high and high-risk employers for COVID-19-related on-site inspections;
  • Track remote inspections retroactively to Feb. 1, 2020, and continue tracking them;
  • Compare remote inspections to on-site inspections in regard to the frequency and timeliness of inspectors identifying and ensuring abatement of worksite hazards; and
  • Adopt an infectious disease-specific ETS is necessary to help control the spread of COVID-19 on worksites.

OSHA had reportedly accepted the recommendations and said that it was working on all of them.

COVID-19 Guideline History

In terms of regulations that were implemented, OSHA began releasing guidelines on COVID-19 in March 2020. Most recently, OSHA issued an alert at the end of May detailing steps for social distancing in the workplace.

The social distancing measures, which were released in English and Spanish for employers to use in the workplace, include:

  • Isolate any worker who begins to exhibit symptoms until they can either go home or leave to seek medical care;
  • Establish flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if feasible;
  • Stagger breaks and re-arrange seating in common break areas to maintain physical distance between workers;
  • In workplaces where customers are present, mark six-foot distances with floor tape in areas where lines form, use drive-through windows or curbside pickup and limit the number of customers allowed at one time;
  • Move or reposition workstations to create more distance, and install plexiglass partitions; and
  • Encourage workers to bring any safety and health concerns to the employer’s attention.

The social distancing alert was just the latest in a stream of announcements from OSHA in dealing with the pandemic, including documents on respirator guidance, protecting workers in high-risk industries, enforcing safety and other direction for employers.

OSHA issued two revised enforcement policies a few weeks prior, including increasing in-person inspections and revising its policy for recording cases of the coronavirus.

In terms of the inspections, the new enforcement guidance “reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread.”

  • In areas where the community spread of COVID-19 has decreased, OSHA will return to the inspection planning policy that it had relied on prior to the health crisis. However, it will continue to prioritize COVID-19 cases, utilize whatever type of communication is necessary and ensure everyone takes appropriate precautions.
  • In areas experiencing sustained community transmission or a resurgence, OSHA will continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection, will conduct on-site inspections where resources are sufficient and OSHA will develop a program to conduct monitoring inspections.

The second revised guideline emphasizes that employers must make all reasonable efforts to ascertain where a case of coronavirus is work-related when dealing with recordkeeping.

Employers must record cases of the coronavirus if it:

  • Is confirmed as a coronavirus illness;
  • Is work-related as defined by 29 CFR 1904.5; and
  • Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

OSHA reiterates, though, that “recording a coronavirus illness does not mean that the employer has violated any OSHA standard. Following existing regulations, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations; they need only report work-related coronavirus illnesses that result in a fatality or an employee's in-patient hospitalization, amputation or loss of an eye.”

The Guidelines

On Jan. 29, OSHA issued stronger worker safety guidance to aid employers in implementing a COVID-19 prevention program and to better identify risks that could lead to exposure and contraction of the virus.

The guidelines, entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” have been updated with several to-do list recommendations, including:

  • Conduct a hazard assessment;
  • Identify control measures to limit the spread of the virus;
  • Adopt policies for employee absences that don’t punish workers as a way to encourage potentially infected workers to remain home;
  • Ensure that coronavirus policies and procedures are communicated to both English and non-English speaking workers; and
  • Implement protections from retaliation for workers who raise coronavirus-related concerns.

“More than 400,000 Americans have died from COVID-19 and millions of people are out of work as a result of this crisis. Employers and workers can help our nation fight and overcome this deadly pandemic by committing themselves to making their workplaces as safe as possible,” said Senior Counselor to the Secretary of Labor M. Patricia Smith. “The recommendations in OSHA’s updated guidance will help us defeat the virus, strengthen our economy and bring an end to the staggering human and economic toll that the coronavirus has taken on our nation.”

At the time, OSHA stressed that the guidance only contains recommendations and creates no legal obligations.

View all of PaintSquare Daily News' coverage on COVID-19, here.


Tagged categories: COVID-19; Enforcement; Health & Safety; Health and safety; NA; North America; OSHA; OSHA; Regulations; Safety

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