OSHA in 2021: Planning for the Year Ahead

The Legal Intelligencer

(by Brian Lipkin)

In 2021, employers can expect a few significant developments from the Occupational Safety and Health Administration (OSHA):

COVID-19 Standards. Currently, to decide whether an employer has taken proper COVID-19 measures, OSHA typically applies the “general duty clause,” which is the “catch-all” section of the Occupational Safety and Health Act. The general duty clause requires a workplace free from recognized hazards, to protect employees from death or serious physical harm.

Currently, OSHA also applies its existing standard on respiratory protection. This standard focuses on whether an employer has identified appropriate protective equipment, issued it to employees, and trained them to use and maintain it properly.

So far, there are no OSHA standards specific to COVID-19. In the near future, we expect that to change.

On Jan. 21—his first full day in office—President Joe Biden signed an executive order on protecting worker health and safety. Biden ordered the Secretary of Labor to consider issuing emergency COVID-19 standards by March 15. In particular, Biden directed the Secretary of Labor to consider ordering employees to wear masks in the workplace.

We expect the new standards will require employers to develop written plans to limit COVID-19 exposures in the workplace. These plans will likely require employers to identify potential risks, and outline mitigation strategies.

Biden also ordered the Secretary of Labor to issue updated COVID-19 guidance for employers by Feb. 4.

OSHA will release the new standards and guidance on its website at osha.gov/coronavirus.

Targeted Enforcement. Currently, OSHA prioritizes two types of workplaces for COVID-19 enforcement: hospitals and health care providers that treat COVID-19 patients; and workplaces with high numbers of complaints or known COVID-19 cases.

These priorities are consistent with the breakdown of complaints OSHA has received. As of Jan. 24, OSHA had received the most complaints on the health care industry: a total of 2,939. Retail stores, restaurants, and construction workplaces were the next three industries that were common subjects of OSHA complaints.

As part of his executive order, Biden intends to “launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk.” Based on this statement, we expect OSHA to continue to focus on the health care, retail, restaurant and construction industries for enforcement.

Due to OSHA’s enforcement priorities, it is less likely to investigate COVID-19 complaints against low-risk workplaces, such as offices. When OSHA receives a complaint against a low-risk workplace, it typically sends the employer a letter asking for a response, and closes the matter without an in-person visit. We expect this practice to continue, and potentially increase, under the revised enforcement priorities.

The executive order also directs OSHA to target enforcement of retaliation claims against “whistleblowers” who have reported workplace safety and health concerns.

Increased Enforcement. As of Jan. 24, OSHA had opened a total of 1,539 inspections related to COVID-19. Employers might be interested to learn how these concerns came to OSHA’s attention. Workplace fatalities or catastrophes were the most common source, with 822 inspections. Next, there were 362 complaints that resulted in inspections, while 150 inspections were referred by other agencies.

In his executive order, Biden directs the Secretary of Labor to review OSHA’s enforcement efforts so far, and “identify any short-, medium- and long-term changes that could be made to better protect workers and ensure equity in enforcement.”

Through the end of 2020, OSHA had issued proposed penalties totaling $3.9 million due to COVID-19-related violations. With Biden’s increased emphasis on enforcement, we expect both the number of inspections and the proposed penalty amounts to increase in the new year.

Enhanced Cooperation With Other Agencies. When OSHA issues an emergency COVID-19 standard, as expected, it will only apply to employers within OSHA’s jurisdiction. The executive order anticipates this potential gap in coverage. So, the executive order requires OSHA to work with federal, state, and local government agencies to protect municipal workers and mine workers from COVID-19.

Next Steps. Employers should look for OSHA to issue updated COVID-19 guidance by Feb. 4, followed by an emergency COVID-19 standard in the next few months. Based on these materials, employers should prepare for the year ahead by updating their COVID-19 safety plans. At a minimum, employers should document in writing the steps they have taken to address COVID-19 risks in the workplace, since OSHA is likely to request these documents as part of any inspection. Employers in high-risk industries—such as the health care, retail, restaurant, and construction industries—should plan for OSHA to increase enforcement efforts in 2021.

Brian D. Lipkin, an attorney with the Pittsburgh law firm of Babst Calland Clements & Zomnir, represents employers in workplace safety and health matters. Contact him at blipkin@babstcalland.com or 412-394-5456.

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Reprinted with permission from the January 28, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.