Preparing for new OSHA regulations and guidance

The convergence of the COVID-19 pandemic and the change in presidential administrations is profoundly affecting the Occupational Safety and Health Administration (OSHA). Employers need to prepare for a much more demanding regulatory environment.

Some context may be helpful. Workplace safety is regulated through a combination of OSHA, the federal agency charged with administering and enforcing the Occupational Safety and Health Act of 1970, and a collection of twenty-two state-specific OSHA programs with jurisdiction over most non-governmental employers. State programs can set their own rules but must be “no less effective” than the federal standard. In practice, this means they adopt the federal rules and then perhaps add some of their own.

Related: OSHA guidance on preparing workplaces for COVID-19

OSHA regulations include a catch-all General Duty Clause obligation to ensure that workers are not exposed to recognized hazards that are causing or likely to cause death or serious physical harm. OSHA did not issue regulations specific to COVID-19 during the Trump Administration, however OSHA did enforce various existing standards (notably those pertaining to personal protective equipment and respiratory protection), and used the General Duty Clause as an enforcement basis. Upon taking office, President Biden demanded that OSHA issue COVID-19-specific employer guidance (which occurred on January 29) and strongly urged OSHA to issue an emergency COVID-19 regulation by March 15.

During the early months of the pandemic, virtually every state imposed some type of COVID-19 regulation upon employers. These typically occurred through executive orders, but in some instances included regulations promulgated by state OSHA plans. These regulations, when combined with the recent federal OSHA guidance, point to what can be expected when OSHA responds to the President’s March 15 deadline.

The changed philosophy

Before we look into the likely aspects of a national OSHA COVID-19 standard and what employers should do to prepare, it is important to understand the change in regulatory philosophy that the Biden Administration espouses. The change can be summarized as follows:

• Prescriptive and specific rules will replace principles-based regulation.
• OSHA will add enforcement staff and raise its penalty schedule.
• Fines, shaming and adverse publicity will replace collaboration and conciliation. Public accusations will happen long before allegations are adjudicated.
• Repeat offenders, employers in high-risk industries, and workplaces predominantly staffed by disadvantaged or at-risk worker cohorts will receive special emphasis.
• Organized labor will have a prominent voice. Collaboration with “employer representatives” could be mandated.
• It would not displease the Biden administration, nor the senior leadership of OSHA, to learn that the plaintiff’s bar is utilizing alleged OSHA non-compliance as evidence or justification in litigation against employers.

What this means

Many of the COVID-19-related rules brought forth by state governments in the past year were issued with immediate effect. There won’t be much time to prepare for whatever appears in a national emergency standard. Unless employers are prepared in advance, this can set into motion a vortex of fines, adverse publicity, future potential for repeat offender status, and private litigation. As the rules get more numerous and prescriptive, compliance becomes a more expansive undertaking while the risk of inconsistent application and interpretation remains.

It’s unlikely that all the rules enacted over the past year will go away even when we eventually get COVID-19 under control. And, although the “floor” of national standards will almost certainly be raised, thereby creating some degree of consistency, states and localities will continue to promulgate their own additional, and sometimes inconsistent, requirements.

This environment calls for more than a reactive approach. The employer’s response cannot be inherently constrained by existing resources, budgets, or historical approaches. It shouldn’t be limited to what the law is believed to currently require. Nor can it consist only of action by safety, risk management and legal staff at corporate headquarters. Instead, it needs to embrace the reality that workplace safety is a fundamental and non-negotiable expectation. All stakeholders must participate and contribute.

Likely content in the upcoming emergency standard

Here are some requirements that are likely to be part of the Emergency Temporary Standard. We can expect these rules to apply to nearly every employer and workplace.

1. Designation of an employer safety representative for each workplace
2. Duty to effectively assess work sites for risk conditions and promptly rectify all identified hazards
3. Duty to implement and maintain effective administrative controls such as access management, physical distancing and mask wearing
4. Prescribed methods for cleaning, disinfecting and ventilation
5. Broad obligation to provide protective equipment and ensure its suitability and use
6. Written, and periodically re-evaluated, workplace safety plans, with the potential for separate or customized plans for each worksite
7. Explicit roles for non-management workers, and unions where applicable, in the design and implementation of these workplace safety plans
8. Extensive training and awareness programs, delivered in a language well understood by each worker (hence potential for multiple language versions)
9. Formal processes to screen workers on a daily basis, to take employee self-reports of symptoms, and to isolate or exclude infected, potentially infected and at-risk workers
10. Reasonable accommodations, including remote work or alternative work when practical
11. Strong anti-discrimination and anti-retaliation provisions
12. Extensive record-keeping, record production and contact tracing obligations

To be sure, there are other features or requirements that could arise, such as free testing or continuity of benefits or wages. The main question concerning the imminent standard is how expansive and demanding it might be.

The emergency’s winding down… Now what?

Emergency Temporary Standards expire after six months unless steps are commenced to make them permanent. Looking forward to September, it is probable that COVID-19 will still be a cause of illness and death, that new cases will continue to arise (though less often) and that concerns will persist about new strains and future pandemic episodes. So: what then?

A possible, perhaps even likely outcome, is for a permanent infectious disease standard to replace the COVID-specific Emergency Temporary Standard. If a permanent standard were to be proposed, the Emergency Temporary Standard would be its basis and the Emergency Temporary Standard would remain in place until a determination is made on the permanent standard.

We can expect OSHA to be mindful of the best path forward to a permanent standard as it develops the content of the temporary standard.

Critical employer actions

It will of course be necessary for employers to perform a point-by-point analysis of the content of any announced Emergency Temporary Standard in order to verify compliance. But we would hope that every organization has already taken extensive action managing COVID-19, and that employers are approaching COVID-19 protection not merely from the standpoint of what is legally required but rather what is necessary in order to ensure the safety of all stakeholders regardless of any legal requirements.

With this viewpoint in mind, a prescriptive to-do list hardly seems appropriate. Instead, employers should take a fresh look at the entirety of their COVID-19 risk management program and identify areas of additional opportunity. There’s no harm in using OSHA guidance, or the rules of notable states such as Virginia and California, as a checklist or framework, but employers should be ready to go beyond such content in order to ensure they are doing the right thing.

It is equally critical that the employer assess its internal management and dynamics. Some key aspects:

• Do we have the right people in charge? Is COVID-19 getting the internal focus and attention it needs?
• Do we have a healthy culture? Do our people feel empowered to bring issues forward? Do we truly know what they think?
• Are we being consistent across all time periods and locations?
• Can we prove the good things we did? Is access to data appropriately walled off? Are privacy rights being respected?
• Now that it appears we are in this for the long haul, should we reassess workflows or responsibility assignments? Where can we be more efficient?
• Are the right people in the know, in a timely fashion, as issues arise?
• Are we being effective communicators? Does information flow in both directions?
• Are we going to have a vaccination mandate? Are we going to self-administer any offering?
• What about incentives and accommodations?

A final point concerns technology. It does not seem possible to accomplish everything on the list above without having appropriate technology to support the effort. Recordkeeping, task automation, accountability and program analytics are among the key needs that can thereby be addressed.

COVID-19 was and still remains an emergency. It is transitioning to a long-term fact of life that shapes a necessary new way of doing business. As we await further governmental action, now is a good time to reassess all aspects of COVID-19 management with this perspective in mind.

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