Why was OSHA’s COVID-19 Emergency Temporary Standard Placed in “Limbo” by Secretary of Labor Walsh?

On January 21, 2021, President Biden signed an executive order directing OSHA to consider issuing an Emergency Temporary Standard (“ETS”) related to COVID-19. If the ETS is deemed necessary, the executive order instructed OSHA to issue it by March 15, 2021. Now, nearly three and a half weeks past that date, the ETS has just been placed on “hold” by Secretary of Labor Marty Walsh.

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OSHA Clarifies No Need for “Double” Reporting of Related Injuries/Illnesses

Under OSHA’s Recording and Reporting Occupational Injuries and Illnesses regulation, employers are required to affirmatively notify OSHA when an employee suffers a work-related hospitalization, amputation, or loss of an eye or an employee fatality. A fatality must be reported within eight hours and any in-patient hospitalization, amputation, or eye loss must be reported within twenty-four hours. Please see OSHA’s FAQs found here for additional information on what information must be reported and how to report it. See OSHA’s FAQ’s found here.

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Odds Increase On OSHA Issuing COVID-19 Emergency Temporary Standards

Shortly after President Biden took office, he signed an Executive Order directing OSHA to, among other things, determine whether emergency temporary standards (ETS) on COVID-19 are necessary; and if so, to issue them by March 15, 2021. Former Secretary of Labor Eugene Scalia repeatedly stated an ETS was not necessary and OSHA’s general duty clause provided OSHA with the necessary enforcement tool to address COVID-19 in the workplace.

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OSHA’s Return to Public Shaming

Prior to the Trump administration, OSHA commonly engaged in the practice of “public shaming.” In other words, if an OSHA investigation found a relatively serious safety violation, it would issue a press release identifying the business, exposing their failings, and detailing the hazards discovered in the inspection. Often, these press releases would be picked up by other media sources and more widely circulated. The objective was that such media attention would serve an educational and deterrent purpose to other entities in the same industry and/or geographic area. During this time, OSHA also had a general policy of providing information about alleged violations upon request from media sources quickly. Critics of the policy argued that OSHA should not publicize enforcement cases until the citations have been fully resolved as a matter of due process. 

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Be Wary of OSHA “Approved” PPE

OSHA’s long-standing position is that it does not approve or endorse particular products.  Moreover, the determination of compliance with OSHA’s standards cannot be based on an evaluation of the equipment or devices alone. Rather, this determination must consider factors related to the use of such devices at a worksite and should include an evaluation, through direct observation, of employee work practices and conditions of use in the workplace. See OSHA Standard Interpretation dated September 15, 1993, which can be found here.

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Injuries at Voluntary Charitable Events: Recordable under OSHA?

It is that time of year again where many businesses provide their employees with the opportunity to participate in various charitable events in the spirit of giving. Doing so may raise a number of employment-related issues including whether such time is compensable or whether an injury during such an event is covered by Workers’ Compensation. The answer to these questions may turn on facts such as whether employees are required to participate, does it occur during normal business hours, or whether employees are incentivized or otherwise encouraged to attend.

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OSHA’s Most Frequently Cited Standards in COVID-19 Investigations

With a new administration on the horizon, it seems likely OSHA may revisit whether it will issue emergency COVID-19 regulations, something Secretary of Labor Scalia has repeatedly stated is not necessary despite heavy criticism by worker advocate groups. Indeed, many states have or will be implementing such emergency regulations such as Virginia, California, Oregon, and Michigan. Currently, OSHA relies on the general duty clause to ensure employers are taking necessary measures to protect employees from COVID-19 in the workplace. However, OSHA has made clear that other existing standards may be applicable in COVID-19 related investigations. Recently, OSHA published a list of the most frequently cited standards in COVID-19 investigations which can be found here.

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