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.(more…)
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.(more…)
Happy New Year! A New Year means increased maximum penalties for OSHA citations. As of January 16, 2021, the maximum penalties for serious, other-than-serious and posting requirements is now $13,653 per violation; $13,653 per day for failure to abate; and $136,532 for willful or repeat violations.(more…)
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.(more…)
OSHA practitioners who have handled citations involving fatalities or severe injuries are most likely no strangers to considering how these citations including the alleged violation description might affect collateral litigation such as wrongful death actions or tort claims. Indeed, collateral litigation almost always presents significantly more liability for businesses than the OSHA penalty. Although state workers’ compensation laws may differ, it is usually difficult for an employee to evade the exclusive remedy of workers’ compensation in a more traditional injury on the job. Of course, there may be other facts such as a fatality on a multi-employer worksite that might complicate workers’ compensation coverage. In such cases, the business may decide it is more advantageous to take the position that the injured employee of another entity is also its statutory employee to trigger workers’ compensation coverage. These considerations will often drive OSHA settlements including timing and settlement agreement language. For example, businesses should insist on language that states the settlement cannot be used for any other purpose except OSHA enforcement. Of course, notwithstanding such language, a court may still permit the settlement as evidence in collateral litigation.(more…)
On June 10, 2020, the Occupational Safety and Health Administration (OSHA) published a series of frequently asked questions and answers (FAQs) regarding the recommended use of surgical masks, cloth face coverings, and respirators in the workplace in the wake of ongoing health concerns arising from the continued spread of COVID-19. The new guidelines recognize that as many workers begin to return to their places of employment throughout the United States, some may be wearing masks in the workplace for the first time. The FAQs embody the most recent guidance from OSHA addressing protective measures for the workplace during the coronavirus pandemic.(more…)
On May 19, 2020, the Occupational Safety and Health Administration (“OSHA”) published revised enforcement guidance detailing when employers must record COVID-19 illnesses. The new guidance reverses course on prior guidance dated April 10, 2020 which relaxed the circumstances when most employers would need to record these illnesses. The new guidance becomes effective on May 26, 2020, and will remain in effect until further notice.(more…)
On April 10, 2020, OSHA issued additional guidance for employers on their obligations to record COVID-19 cases which can be found here.
Prior to this guidance, OSHA made clear that COVID-19 cases may be recordable if a worker is infected as a result of performing work-related duties. Thus, employers would need to record COVID-19 cases if all of the following conditions are met:(more…)
Many businesses are permitting employees to work from home in response to COVID-19 and many more will do so particularly as states like New York have and/or will be restricting the number of employees at the worksite.
Does this mean the employer must inspect an employee’s home to ensure that it is a safe and healthy work environment under OSHA? The answer is generally no. In 2002, OSHA provided guidance regarding telecommuting available here.(more…)