Amid growing criticism of the agency’s response to the COVID-19 pandemic, OSHA’s Principal Deputy Assistant Secretary, Loren E. Sweatt (“Sweatt”), testified before the House Education and Labor Committee’s Workforce Protections Subcommittee last Wednesday during which she defended the agency’s actions to protect worker safety during the pandemic. Below, we discuss the top three takeaways from Sweatt’s testimony that employers should know.
1. OSHA Stands By Its Refusal to Issue COVID-19 Specific Regulations
Instead of issuing specific regulations related to the COVID-19 pandemic, OSHA has opted to apply existing workplace safety standards and issue industry-specific guidance. The agency has been under increasing pressure to issue regulations, and is currently defending a lawsuit by the AFL-CIO seeking an order requiring OSHA to issue an emergency temporary standard within 30 days.
During her testimony, Sweatt did not address the AFL-CIO’s lawsuit, but did respond to claims that employers have no compliance obligations because of the lack of a temporary standard. According to Sweatt, “[t]his is not accurate, and repeating this erroneous claim does a disservice … to the hardworking men and women OSHA aims to protect. It also misleads employers about the legal obligations they have.”
As an alternative to emergency regulations, the agency has instead applied existing workplace safety standards to the COVID-19 pandemic. According to Sweatt, these existing standards – including those regarding personal protective equipment, sanitation, training and education, hazard communication, and the general duty clause – “serve as the basis for its COVID-19 enforcement” and are effective to ensure workplace safety during the pandemic.
The agency has also issued various industry-specific guidance, which according to Sweatt, has the advantage of additional flexibility and specificity. According to Sweatt, “[a]s our medical professionals and scientists learn more about the virus, guidance can be easily updated, while regulations are very cumbersome to revise. Guidance also allows us to speak more specifically to particular types of workplaces and controls than would be practicable in a generally applicable rule.” As an example of this flexibility, Sweatt cited the agency’s decision to revoke previous guidance that temporarily relaxed employer recording obligations during the pandemic. Our post on the new recording guidance is available here.
2. The Agency Has Issued Various Industry-Specific Guidance
During her testimony, Sweatt provided an overview of the various industry-specific guidance that OSHA has published on the COVID-19 pandemic. As of June 1, OSHA has issued general interim guidance as well as fifteen different guidance documents for industries where workers are more likely to be exposed to COVID-19. Industry-specific guidance is available for employers in the healthcare, construction, manufacturing, retail, and cleaning services industries, among others.
Each guidance document generally provides employers with information regarding which engineering controls, administrative controls, safe work practices, and PPE are appropriate for the industry. The guidance also provides examples of work tasks associated with various risk levels in OSHA’s occupational exposure risk pyramid. For example, in the healthcare industry, where many tasks fall into the “high” or “very high” risk categories, the guidance recommends isolating patients with suspected or confirmed COVID-19; implementing systems for cleaning and disinfecting; and providing extensive PPE such as gloves, gowns, eye/face protection, or NIOSH-certified N95 filter face piece respirators or better. On the other hand, in the retail industry, where many tasks are categorized as “lower” or “medium” risk, the guidance recommends implementing measures to maintain social distance and to reduce store density, but does not generally recommend “PPE beyond what [is used] during routine job tasks” unless a risk assessment warrants the use of additional items.
In addition to the industry-specific guidance, OSHA has also published:
- A series of practical industry alerts that provide guidance on practices and procedures to protect worker safety;
- Five guidance documents on respirators, which aim to ensure that these items are available to care for patients with COVID-19 and other activities that could result in respiratory exposure to the virus; and
- A reminder that “it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic.” OSHA enforces the whistleblower provisions in more than twenty federal statutes related to workplace safety, including the Occupational Safety and Health Act, which protects employees from retaliation for filing a workplace safety complaint with OSHA or participating in an investigation.
These industry-specific alerts, the respirator guidance, and OSHA’s statement on whistleblower protection can all be accessed here.
3. OSHA Plans To Ramp-Up COVID-19 Enforcement
According to Sweatt’s testimony, employers should expect OSHA enforcement related to COVID-19 to increase as businesses begin to re-open. According to a revised interim enforcement response plan issued by the agency on May 19, eliminating workplace hazards from COVID-19 remains a top priority for the agency. To that end, Sweatt indicated that in-person inspections will be increasing now that businesses are beginning to re-open and the PPE needed for inspections is becoming more widely available.
Since the beginning of the pandemic, OSHA has received 4,268 COVID-19 safety and health complaints and 1,328 COVID-19 whistleblower complaints. The agency has been reviewing these complaints and has already closed nearly 3,000 cases; and on May 18, 2020, the agency issued its first COVID-19 citation. The citation was issued to a nursing home in Georgia for failing to report a work-related incident resulting in hospitalization, amputation, or loss of an eye within 24 hours. According to the citation, “the employer reported six hospitalizations that occurred as early as April 19, 2020 but did not inform USDOL-OSHA of the hospitalizations until May 5, 2020.” The citation came with a proposed penalty of $6,506. Employers should expect to see an increase in similar COVID-19 related citations now that OSHA had indicated that it will ramp up enforcement.
Employers should review the general interim guidance and any industry-specific OSHA guidance applicable to their business. In doing so, employers should consider what PPE, employee training, or other measures are necessary to protect employees and ensure OSHA compliance. Employers who primarily operate in office settings may also wish to review OSHA’s Guidance on Preparing Workplaces for COVID-19, which in low-risk settings does not recommend PPE beyond which employees would ordinarily use in their jobs.
Employers should also consult guidance issued by the CDC and state and local governments – such as New York State’s re-opening guidance – which may impose workplace safety measures beyond those mandated by OSHA – including mask and other requirements to provide employees PPE.
* * *
Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.