OSHA Vaccination Mandate Faces Uncertain Future

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On September 9, 2021, President Biden ordered the promulgation by OSHA of an Emergency Temporary Standard (ETS) applicable to employers with 100 or more employees. Under the ETS, covered employers will be tasked with requiring employees to be either fully vaccinated or tested weekly for COVID-19. Covered employers will also be required to provide employees paid time off to (1) obtain vaccines, and (2) recover from the side effects of vaccinations. An employer which violates the ETS will be subject to a penalty up to $14,000 per violation.

Many employers may welcome an OSHA standard as support for (1) existing vaccine mandates, or (2) new vaccine mandates. Still, the ETS announced by President Biden faces an uncertain future for at least three reasons.

First, the ETS has yet to be written by OSHA. The last time President Biden directed OSHA to promulgate an emergency COVID-19 standard, delays plagued the agency’s response. Six months elapsed between President Biden’s January 21, 2021 Order, and the publication of the ETS on June 21, 2021.

Second, once implemented, the ETS will likely be challenged in court. One potential basis for a legal challenge is the need for a ETS. An ETS is not subject to the same procedures as other OSHA standards and thus requires a showing of “grave danger” to employees. This “grave danger” threshold may be difficult to meet for an unvaccinated employee who only interacts with vaccinated employees or who only works from home.

Another potential basis for a legal challenge is the paid time off requirement. OSHA is charged with providing employees with a safe workplace, not enforcing pay regulations.

Still another legal challenge may be the efficacy of the ETS. Any vaccine mandate will likely provide exemptions based upon medical or religious reasons. For such employees, the question will be whether weekly COVID-19 testing is a viable alternative. OSHA will also have to explain why the ETS covers only larger employers, and not smaller employers with less than 100 employees.

Finally, President Biden’s directive leaves several questions to be answered by OSHA in the ETS. How will employers verify vaccination status? Who will pay for vaccinations? Who will pay for COVID-19 testing? How will employers cope with logistical issues related to COVID-19 testing over which they have no control?

For now, employers should continue to heed the advice of legal counsel as to unvaccinated employees in the workplace. The blog will provide updates as the promulgation of the ETS by OSHA progresses.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

OSHA Defers To CDC For Fully Vaccinated Employees

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On May 17, 2021, OSHA updated its website to add the following message:

“The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

For now, therefore, employers should follow the CDC guidelines as to vaccinated employees.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

OSHA Prioritizes COVID-19 Inspections

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On March 12, 2021, OSHA launched a National Emphasis Program for the inspections of companies that put the largest number of workers at serious risk of contracting COVID-19. Amongst the employers targeted by the National Emphasis Program are the following:

  • Hospitals
  • Health care providers
  • Nursing homes and assisted living facilities
  • Emergency responders
  • Correctional facilities
  • Meatpacking plants and poultry processing facilities
  • Grocery stores
  • Discount department stores
  • General warehousing & storage
  • Temporary help services
  • Restaurants
  • Workplaces with high numbers of COVID-19-related complaints or known COVID-19 cases
  • Workplaces in communities with increasing rates of COVID-19 transmission

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

OSHA Public Shaming Resumes Under Biden

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

As noted in a previous post on this blog, one of the strategies by OSHA under the Obama administration was public shaming of employers which received citations. This strategy included agency press releases scolding employers for not protecting their employees. These press releases were often republished by media outlets thereby reaching a wider audience.

The strategy of public shaming was touted by the agency as an effective deterrent to safety violations. Nevertheless, the strategy proved to be unfair to many employers. Once issued, OSHA citations can be amended, reduced or even dismissed, but the damage to a business’ reputation from a misleading news release can be difficult to undo.

Follow-up posts (here and here) on this bog documented the brief pause, resumption and eventual ban of the public shaming strategy under the Trump administration. In justifying the ban, a Sept. 24, 2020 internal memorandum highlighted an important problem with the strategy: “News releases … can prove misleading if, for example, [OSHA] issues a release at the time a proceeding is first initiated, and is ultimately found to be unjustified in its enforcement action.” The ban thus limited news releases to citations with successful outcomes.

The blog post regarding the Sept. 24, 2020 ban posed the question of what would become of the ban if Joe Biden was elected president? OSHA appears to have already answered this question. In February, the agency resumed the practice (here) of publicizing OSHA citations as soon as they are issued without awaiting a successful outcome.

As emphasized by many posts on this blog, an effective strategy for defending against OSHA enforcement begins before, not after, an OSHA inspection has taken place. The risk of a misleading press release by OSHA is yet another risk of not adopting such a strategy.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

OSHA Issues New COVID-19 Guidance

By Robert G. Chadwick, Jr., Seltzer, Chadwick, Soefje & Ladik, PLLC.

In accordance with President Biden’s January 21, 2021 Executive Order, OSHA published new guidance on January 29, 2021 for mitigating and preventing the spread of COVID-19 in the workplace.

The new guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as to the implementation of a COVID-19 prevention program. 

All of OSHA’s standards that apply to protecting workers from infection remain in place. These standards include: requirements for personal protective equipment (29 CFR 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA’s requirements for employee access to medical and exposure records (29 CFR 1910.1020). These standards have already formed the basis of OSHA citations.

There is no OSHA standard specific to COVID-19; however, employers still are required under the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Biden’s Call To Action To OSHA on COVID-19

By Robert G. Chadwick, Jr., Seltzer, Chadwick, Soefje & Ladik, PLLC.

On January 21, 2021, President Biden signed an Executive Order requiring OSHA to take swift action to reduce the risk that workers may contract COVID-19 in the workplace.

The Executive Order outlines five (f) steps which must be undertaken by OSHA:

(a) issue, within 2 weeks of the date of this order and in conjunction or consultation with the heads of any other appropriate executive departments and agencies (agencies), revised guidance to employers on workplace safety during the COVID-19 pandemic;

(b)  consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021;

(c)  review the enforcement efforts of the [agency] related to COVID-19 and identify any short-, medium-, and long-term changes that could be made to better protect workers and ensure equity in enforcement; 

(d)  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 or are contrary to anti-retaliation principles; and

(e)  coordinate with the DOL Office of Public Affairs and Office of Public Engagement and all regional OSHA offices to conduct, consistent with applicable law, a multilingual outreach campaign to inform workers and their representatives of their rights under applicable law. This campaign shall include engagement with labor unions, community organizations, and industries, and place a special emphasis on communities hit hardest by the pandemic.

Stay tuned to this blog for further updates.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

A Reprieve For Employers From Public Shaming By OSHA

Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

As noted in previous posts on this blog (here and here), one of the strategies employed by OSHA has been public shaming of employers who receive citations. This strategy has included agency press releases scolding employers for not protecting their employees. These press releases have often been republished by media outlets thereby reaching a wider audience.

At a 2010 conference, Dr. David Michaels, Assistant Secretary of Labor under the Obama administration, even boasted of the strategy of “regulation by shaming.” He said OSHA would undertake to issue news releases that “name employers, expose their failings, and detail the serious hazards uncovered in our inspections.”

Press releases announcing OSHA citation have continued under the Trump administration, albeit at a reduced pace. In 2020, nearly 100 such press releases have been published on the agency’s website.

New Guidance on Press Releases

On September 24, 2020, an internal Department of Labor Memorandum highlighted an important problem with the public shaming strategy: “News releases … can prove misleading if, for example, [OSHA] issues a release at the time a proceeding is first initiated, and is ultimately found to be unjustified in its enforcement action.”

Accordingly, Assistant Secretary of Labor Patrick Pizzella announced a new policy: “[I]n general, enforcement agencies should not issue news releases before achieving a successful outcome.” “In most cases the appropriate time for a release will be the point in time:

  • After a court or other tribunal has rendered judgment or issued a decision;
  • After a conviction or plea agreement has been obtained;
  • After an agency has entered into a settlement or conciliation agreement with the named party regarding remedies or the payment of a penalty; or
  • After the time for contesting a finding (such as a citation) has elapsed and the party has not contested or requested to negotiate.

Under the new policy, if OSHA wants to issue a press release, the agency must first consult with the DOL Office of the Solicitor. The final decision is at the discretion of the DOL, not OSHA.

COVID-19-Related Press Releases Continue

Perhaps as a result of public criticism of OSHA’s response to the COVID-19 pandemic, the new policy has a limited exception: “An extraordinary circumstance that might warrant a news release at the time a proceeding is initiated would be a case alleging a serious violation that is potentially widespread and which the [DOL] has not addressed in a prominent way previously, so that instructing the public through a news release could significantly further worker protection.”

As late as October 23, 2020, therefore, OSHA was still publishing a list of coronavirus violations.

The 2020 Election

If Trump is reelected President, the new policy will likely last another four years. What will become of the policy, however, if Joe Biden is elected President? Will OSHA return to the previous strategy of public shaming employers even without a successful outcome? Stay tuned to this blog for further updates.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Tracking COVID-19-Related Citations By OSHA

[UPDATE: On Oct. 2, 2020, the OSHA website began listing OSHA-related citations. See the link here].

Many State OSHA agencies have been active this year in citing employers for safety violations related to COVID-19. Federal OSHA, however, has only recently begun to cite employers for such violations. The purpose of this post is to track these federal citations thereby underscoring for employers the new emphasis being placed by the agency on COVID-19.

So far, OSHA’s focus has been directed at meat packing plants and hospitals.

July 21, 2020 – OHNH EMP LLC

OSHA inspected three OHNH EMP facilities in Ohio: Pebble Creek Healthcare Center in Akron, and Salem West Healthcare Center and Salem North Healthcare Center in Salem. OSHA announced on July 21, 2020 it had cited each location for an alleged serious violation of two respiratory protection standards: allegedly failing to develop a comprehensive written respiratory protection program and allegedly failing to provide medical evaluations to determine employees’ ability to use a respirator in the workplace. OSHA proposed a penalty of $40,482.

Sept. 8, 2020 – Nautchaug Hospital

On Sept. 8, OSHA issued a citation against Nautchaug Hospital in Connecticut, which alleges: On or about, April 25, 2020, employees who provided direct care to a suspect COVID-19 patient were not provided adequate respiratory protection and were potentially exposed to SARS-CoV-2 virus.” The citation proposes a penalty of $11,566. 

Sept. 10, 2020 – Smithfield Packaged Meats Corp.

At least 1,294 workers employed at Smithfield Packaged Meats Corp., in Sioux Falls, South Dakota, contracted coronavirus, and four employees died from the virus in the spring of 2020.On Sept. 10, 2020 OSHA announced it had cited Smithfield for alleged violations of the general duty clause of the OSH Act. OSHA proposed a penalty of $13,494. Smithfield has announced its intention to contest the citation.

Sept. 10, 2020 – Christus Shreveport-Bossier Health System

Earlier this year, employees of the Christus Shreveport Health System complained to OSHA of exposures to COVID-19 due to improper protection protocols. On Sept. 10, 2020, OSHA announced it had cited Christus for alleged personal protective equipment violations. OSHA proposed a penalty of $13,494. Christus has announced its intention to contest the citation.

Sept. 11, 2020 – JBS Foods

Onn Sept. 11, 2010, OSHA demonstrated that meat packing companies are a national emphasis for inspections and citations. OSHA announced it had cited JB Foods for alleged violations of the general duty clause of the OSH Act. OSHA proposed a penalty of $15,615.

Sept. 11, 2020 – CarePlus Bergen Inc. d/b/a Bergen New Bridge Medical Center 

On Sept. 11, 2020, OSHA announced it had cited CarePlus Bergen, Inc. d/b/a Bergen New Bridge Medical Center in New Jersey for allegedly violating respiratory protection standards. The citation was prompted by a coronavirus-related inspection. OSHA proposed a penalty of $9,639.

Sept. 11, 2020 – Hackensack Meridian Health Residential Care Inc. 

Based on a coronavirus-related inspection, OSHA announced on Sept, 11, 2020 it had cited Hackensack Meridian Health Residential Care, Inc. for an alleged serious violation for failure to provide respirators to resident-care employees for a period of time in March 2020. Employees were caring for residents who were exhibiting symptoms of coronavirus. OSHA also cited the employer for the alleged failure to conduct respirator fit testing, effective training and compliant medical evaluations, during the period after the employer began providing respirators to the employees and requiring their use. OSHA cited one other-than-serious violation for the facility’s alleged failure to establish a fit-test record for qualitative fit tests. OSHA proposed a penalty of $28,070.

Sept. 11, 2020 – Roudebush VA Medical Center

OSHA cited Roudebush VA Medial Center in Indiana for failing to provide appropriate PPE and failing to protect employees from COVID-19, particularly non-medical staff.

Sept. 16, 2020 – Georgetown Dental LLC 

On Sept. 16, 2020, OSHA announced it had cited Georgetown Dental, PLLC for allegedly failing to provide medical evaluations and fit testing for employees required to wear N-95 respirators as protection against coronavirus; lack of written programs related to respiratory protection, bloodborne pathogen exposure control and chemical hazard communication; insufficient bloodborne pathogen training and controls; and inadequate eyewash stations. OSHA proposed penalties of $9,500. The company has paid the penalty in full and abated the citations.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Coronavirus Crisis: OSHA Steps Up Enforcement As Businesses Reopen

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

Effective May 26, 2020, OSHA is rescinding the Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), published by the agency on April 13, 2020 (See April 15, 2020 Post), and the Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), published by the agency on April 10, 2020. As businesses reopen, OSHA will instead be guided by two revised enforcement policies.

Inspection Priorities

First, under an Updated Interim Enforcement Plan for Coronavirus Disease 2019 (COVID-19, OSHA will resume in-person inspections of workplaces. The agency will continue to prioritize COVID-19 cases. “Particular attention for on-site inspections will be given to high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces, with high numbers of complaints or known COVID-19 cases.”

OSHA will continue to provide enforcement priority to “[h]igh and very high exposure risk jobs.” In this regard, the Updated Plan says:

“High and very high exposure risk jobs are those with high potential for exposure to known or suspected sources of SARS-CoV-2 that occurs during specific medical, postmortem, or laboratory procedures. Workplaces considered to have job duties with high risk of exposures to COVID-19 include, but are not limited to, hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities, settings where home care or hospice care are provided, settings that handle human remains, biomedical laboratories, including clinical laboratories, and medical transport. The aerosol-generating procedures, in particular, present a very high risk of exposure to workers. The aerosol-generating procedures for which engineering controls, administrative controls, and personal protective equipment (PPE) are necessary include, but are not limited to, bronchoscopy, sputum induction, nebulizer therapy, endotracheal intubation and extubation, open suctioning of airways, cardiopulmonary resuscitation and autopsies.”

 OSHA standards that may be investigated by OSHA as to COVID-19 include:

  •    Recording and Reporting Occupational Injuries and Illness (29 CFR 1904)
  •    General Requirements – Personal Protective Equipment (29 CFR 1910.132)
  •    Eye and Face Protection (29 CFR 1910.133)
  •    Respiratory Protection (29 CFR 1910.134)
  •    Sanitation (29 CFR 1910.141)
  •    Specification for Accident Prevention Signs and Tags (29 CFR 145)
  •    Access to Employee Exposure and Medical Records (29 CFR 1910.145)
  •    General Duty Clause

Recording COVID-19 Cases

Second, under Revised Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19),  COVID-19 is a recordable illness if:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control (CDC);
  2. The case is work-related as defined by 29 C.F.R. 1904.5; and
  3. The case involves one or more of the general recording criteria set forth in 29 C.F.R. 1904.7.

The Revised Guidance acknowledges the difficulty of determining whether a COVID-19 illness is work-related. Still, OSHA maintains that an employer must conduct a reasonable investigation as to whether the disease was contracted at work. In this regard the Revised Guidance states:

“Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.”

Even after a reasonable investigation, it may still not be entirely clear whether COVID-19 was contracted at work.  In this regard, the Revised Guidance provides:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

Reading Between The Lines

OSHA has already been facing intense political pressure to take more decisive action to safeguard workers in the wake of the COVID-19. This pressure will only become more intense as business previously subject to state and local closure orders reopen.  Employers should thus expect OSHA to be considerably more active in the remaining months of 2020.

Most employers already know, moreover, that OSHA obligations do not exist in a vacuum. OSHA inspections and illness recordings are sure to impact exposures other than OSHA citations, such as wrongful death actions, criminal prosecutions and workers’ compensation claims.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.