As we move into the warmer spring and summer months and more people receive vaccinations at an accelerating pace, states and localities are beginning to relax or repeal COVID-19 mandates on facial coverings and social distancing. Following this relaxing of restrictions in the workplace may be perilous for employers, as the Occupational Safety and Health Administration (OSHA) announced new enforcement efforts relating to continued COVID-19 protections for workers and has strongly implied it may issue an emergency temporary standard (ETS) in response to President Biden's call for such a standard. In our prior newsletter, we wrote about President Biden's Executive Order on Protecting Worker Health and Safety directing OSHA to issue a new ETS on workplace safety to protect workers from COVID-19 by March 15, 2021.
Unsurprisingly, this major undertaking by OSHA has been delayed beyond the expected March 15 release date. The delay could signal that OSHA is struggling with whether or how to implement a new COVID-19 standard one year into the pandemic, as vaccinations are increasing daily, as revised information on what protections are appropriate is expected to be issued by the Centers for Disease Control (CDC), and as states and localities are trending toward fewer, rather than more, COVID-19 restrictions. The irony of such an ETS focused specifically on COVID-19 is heightened by the likelihood of business opposition and ensuing litigation and by the consideration that any such ETS can be effective for only six months. Presumably OSHA is considering whether it can meet the substantial hurdles attendant to such emergency rulemaking and whether its efforts should be directed at a broader rule on infectious diseases.
If OSHA elects to pursue an ETS, it will be following numerous states that have promulgated their state-specific ETS relating to COVID-19. States such as Virginia (which we previously wrote about), Oregon, Nevada, and Michigan have similarly issued emergency standards that are enforced by state occupational health and safety agencies.
It remains unclear whether the possible ETS will reflect the requirements of the rules enacted in such states or simply continue OSHA's existing guidelines. What is clear, however, is that unlike local jurisdictions that have decided it is safe to relax rules, OSHA intends to emphasize continued enforcement of rules mandating the use of face coverings and social distancing, among other protocols, in workplaces. On Friday, March 12, 2021, OSHA announced a new national emphasis program (NEP) focused on enforcing safety protocols for workers in "high hazard industries or activities" who have a high frequency of close contact with potential exposure to COVID-19. OSHA has identified nearly 50 types of businesses that fall within the NEP, including medical offices and healthcare facilities; warehouses; supermarkets and grocery stores; restaurants; meat and poultry processing plants; and other various manufacturing operations. Local OSHA area offices also have the discretion to add other kinds of establishments not specified in the NEP that can additionally become subject to inspections as part of the NEP program.
In addition to the NEP's new safety protocol and procedures, OSHA is taking a stronger stance on retaliation against employees who express concern about unsafe or unhealthy workplace conditions related to COVID-19. Under the NEP, OSHA will afford statutory whistleblower protection to employees who request an on-site inspection; complain of COVID-19 exposure; report injuries or illnesses; or report retaliation.
OSHA's commitment to the NEP is further reflected in its announcement that the NEP is effective immediately. Consequently, employers designated as high-risk workplaces can expect OSHA surveys and on-site inspections pursuant to the NEP to begin phasing in effective immediately, rather than the normal 90-day outreach phase prior to inspections. Accordingly, as of March 12, 2021, OSHA may begin its inspections under the NEP. In addition to ensuring their workplaces are compliant with current safety standards, employers should continue to take employee complaints about working conditions (such as concerns with PPE or routine cleaning) seriously, and contact the authors of this article with any questions about safety protocol implementation or navigating employee health and safety concerns.
OSHA's commitment to continued mandates reflected in its NEP and the possible ETS is a klaxon alarm to employers who might wish to relax workplaces rules for employees, customers, and other constituencies consistent with local decisions to relax those rules. Doing so could result in OSHA enforcement actions against employers taking cues from local efforts to relax or repeal restrictions. Employers consequently should continue to adhere to current OSHA guidance – and the possible OSHA ETS – to ensure that they do not become subject to compliance actions by OSHA or one of its state plan counterparts.
We will continue to monitor the guidance issued by OSHA and further developments in this area. If you have any questions about workplace safety, or any COVID-19-related workplace needs, please contact the authors or any other attorney in Venable's Labor and Employment Group.