With Joe Biden’s inauguration today, talking heads and OSHA insiders have universally predicted significant and rapid changes at the Occupational Safety and Health Agency (OSHA), particularly for COVID-19 safety. But, as an employer, how will those changes affect your business and what changes should you begin making now?
While it is impossible to predict exactly what the administration might do and, more importantly, how those actions will be implemented at the regional and area levels, the Biden transition team has provided a solid outline and state-specific plans fill in gaps on likely COVID-19 regulation. Below is a brief discussion of the immediate changes we expect over the next few months followed by a few practical tips you might consider for your business.
Expectations
The Biden administration is widely expected to implement labor and employee-friendly policies and increase enforcement across the board, but the two most immediate changes are likely to include a Temporary Emergency Standard related to COVID-19 and more COVID-19 inspections.
Temporary Emergency Standard
One of the most frequent criticisms of OSHA during the Trump administration has been the absence of an infection control standard and failure to implement an emergency standard to address COVID-19. Over the past nine months, OSHA simply has not had infection control regulations to enforce. Instead, they have focused on low-hanging fruit, like respiratory protection or perceived violations of reporting requirements. A new “temporary emergency standard” will likely give their inspections more focus and sharper teeth. Based on existing state specific standards in California, Michigan, Oregon, and Virginia, we expect the new temporary standard to include some variation of the following:
- A requirement for a written COVID-19 employee health & safety program;
- Prescribed hazard assessments, including low, medium, high, and very high-risk categories for transmission of COVID-19;
- Required flexible sick leave policies to encourage employees to isolate if exposed or symptomatic;
- Policy to isolate exposed, suspected, or positive employees and return to work as appropriate under CDC guidance;
- Training on signs and symptoms of COVID-19, infection control policies, and workplace controls;
- Health surveillance, including screening of all employees entering the workplace and investigation of confirmed COVID cases;
- Policy to confidentially communicate potential exposures to positive coworkers;
- Basic infection prevention policies, including hand hygiene, increased sanitation efforts for frequently touched surfaces, and physical distancing;
- Face covering requirement for source control;
- Assessment of engineering controls, administrative controls, work practices, and PPE, possibly including:
- HVAC filtration and airflow requirements;
- Controlled access to the workplace to limit visitors and facilitate screening;
- Provision of hand sanitizer and hand washing facilities; and
- Requirement for N95 or higher-grade respirators in certain settings (triggering the Respiratory Protection Standard, 29 CFR 1910.134);
- Documentation or certification requirements related to the implementation of the COVID-19 program.
- Clarification of reporting and record keeping requirements, possibly including elimination of work-relatedness and time limitations; and
- Other industry-specific rules.
Many of these precautions are already in place in most workplaces but compliance among employees varies. The requirement for a written policy and holding employees to that written policy will likely be the most significant change caused by the Temporary Emergency Standard.
Additionally, while legal challenges could delay the implementation of the Temporary Emergency Standard, OSHA will likewise move immediately to incorporate the elements of the standard into their expectations for current inspections under the guise of the general duty clause. Consequently, it will be worthwhile to begin implementing the requirements of a temporary emergency standard immediately.
Increased staffing and enforcement
We are already seeing regional and area offices emerge from their COVID-19 remote inspection policies to conduct more on-site inspections. On top of that, President-elect Biden has said he intends to double the number of OSHA compliance officers. The number of inspectors dropped to a 50-year low during the Trump administration (although it rebounded some in 2020). While doubling staff will take time to hire and train, we could begin seeing the effects of hiring and increased enforcement efforts very soon after the inauguration. Additionally, Biden is expected to appoint an Assistant Secretary of Labor to oversee OSHA, a position that remained unfilled throughout Trump’s presidency.
Increasing enforcement efforts are likely to be felt across all industries, but industries categorized high and very high-risk for COVID-19 transmission should expect the majority of the focus. As they were in the Obama administration, these enforcement efforts will likely be coupled with “regulation by shaming”—meaning intentional and widespread publication of OSHA citations and penalty amounts.
Practical Guidance
There is no on-size-fits-all approach to any employee health and safety program, but as you being to tailor your own plan to the changing regulatory landscape, here are a few areas to consider addressing with respect to COVID-19:
- Create a written COVID-19 infection control plan. Over the past year, we have consistently recommended a written plan for healthcare providers, but we expect the new administration to look for a written safety plan across all industries. A written policy should also be accompanied by communication (training) for employees, monitoring employees for compliance, and appropriate discipline for non-compliance.
- Assess your facility for potential engineering controls. The major emphasis in COVID-19 safety to this point has been on personal protective equipment (PPE), but as an emergency temporary standard is released and as you compile your written plan, you will likely be forced to consider whether engineering controls are appropriate, such as enhanced HVAC filtration or better controlled entry and exits. Because these controls take time to implement, it would be wise to begin planning now.
- Prepare COVID-specific training. Nearly all states that have implemented a COVID-19 emergency standards require all employees to be trained in a short time frame. You can begin developing materials and planning your program now so it can be implemented quickly.
- Pay attention to OSHA reporting and record keeping. Over the last month or two, we have seen OSHA begin to compare outside data on employee illness and fatalities–for healthcare companies, this has included CDC and CMS reporting–to the cases reported to OSHA. As employers post and submit their 300A data, we expect this scrutiny to amplify: did the employer record likely work-related illnesses, and if they did, were hospitalizations and fatalities timely reported to OSHA? More investigators will only enhance OSHA’s ability to mine this data.
- Prepare for an inspection. OSHA has been hamstrung by understaffing and COVID-related restrictions on what its compliance officers can and cannot do, but its COVID restrictions have eased and the Biden administration will move quickly to correct the understaffing. The result will likely be more unannounced on-site inspections. Employers should have a game plan for what to do when a compliance officer knocks on your door.
We are constantly monitoring for new regulations and guidance and have helped numerous employers develop COVID-19 health & safety policies. Please do not hesitate to contact us if we can assist or advise you in any way as your business navigates the changes ahead.
Written By: Weathers Bolt & Brittney Claud, with contribution from Michael Arther, NHA (michael@mcaconsult.net)
If you have any questions or need legal support , please contact:
Richard Davis at 205-868-6044 or rdavis@starneslaw.com
Trip Umbach 205-868-6072 or tumbach@starneslaw.com
Reed Bates 205-868-6080 or rbates@starneslaw.com
Weathers Bolt 251-445-4718 or wbolt@starneslaw.com
Brittney Claud 205-868-6058 or bclaud@starneslaw,com
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