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OSHA and Workplace Safety

OSHA Halts Implementation and Enforcement of ‘Large Employer’ COVID-19 ETS (At Least for Now)

On November 12, 2021, the Fifth Circuit Court of Appeals issued a decision in which it reaffirmed its prior temporary injunction against implementation or enforcement of the Occupational Safety and Health Administration’s Emergency Temporary Standard (the “ETS”) mandating COVID-19 vaccination and testing. The November 12 decision reaffirmed a prior stay issued on November 6th and found that the ETS was both overbroad and under-inclusive. The court found the ETS overbroad because it failed to consider that COVID-19 is “more dangerous to some employees than to other employees.” BST Holdings, L.L.C. et al. v. Occupational Safety and Health Administration, et al., No. 21-60845, slip. op at 13. The court found it underinclusive because even the most vulnerable workers would draw no protection from the ETS if the company employs 99 employees or fewer. Id. at 15. It further ordered the agency to “take no steps to implement or enforce” the ETS until further court order.

Fifth Circuit Issues Temporary Stay on OSHA ETS – What Does It Really Mean?

On November 6, 2021, the Fifth Circuit issued a temporary injunction on OSHA’s ETS for employers with 100 or more employees. The Fifth Circuit’s Order is brief citing “grave statutory and constitutional issues” with the ETS. The Court ordered the government to respond to the motion for a permanent injunction by 5:00 p.m. today, November 8, 2021. The petitioners have until tomorrow, November 9, 2021, at 5:00 p.m. to provide a reply to the government’s response.

OSHA COVID-19 Vaccination and Testing ETS: Overview and Summary

On November 4, 2021, OSHA issued its 490-page document setting out its Emergency Temporary Standard for COVID-19 Vaccination and Testing, as published in the Federal Register at 86 Fed. Reg. 61402 (Nov. 5, 2021).  The ETS requires covered employers to develop, implement, and enforce a mandatory vaccination policy by December 5, 2021, with all covered employees vaccinated by no later than January 4, 2022.  Alternatively, the ETS permits covered employers to instead adopt a policy requiring employees to either get vaccinated or elect, in lieu of vaccination, to wear a face covering at work and undergo weekly COVID-19 testing. The ETS imposes many additional safety protocols, recordkeeping, and disclosure requirements for covered employers and employees beyond mandatory vaccination and testing.

The New Federal COVID-19 Requirements for Employers With 100+ Employees Have Finally Arrived

OSHA issued the long-awaited ETS requiring employers with 100 or more employees to mandate that employees either get the COVID-19 vaccine or undergo weekly COVID-19 testing.  The Spencer Fane Labor and Employment Attorneys are analyzing the ETS and will be providing a more in-depth client alert shortly, in addition to hosting an educational WorkSmarts™ webinar on Wednesday, November 10 from 2:00pm-3:00pm CT.  In the meantime, here are a few highlights:

OSHA Assesses Significant Penalties for Alleged Asbestos Mismanagement at Missouri Nursing Facility

OSHA’s Kansas City Area Office recently cited three employers for allegedly exposing workers and residents to asbestos hazards and failing to ensure safe removal of the known carcinogen during a flooring replacement project at a Monett, Missouri, nursing facility.  Proposed penalties for the three employers totaled approximately $240,000.

OSHA Implements COVID-19 Emergency Temporary Standard for Healthcare and Updates COVID-19 Guidance for all Employers

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) announced an action OSHA has not taken in 38 years: issuing an Emergency Temporary Standard (“ETS”).  This ETS aims to protect “healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present.”  The ETS does not go into effect until publication in the Federal Register, which has not yet occurred but appears imminent (OSHA has submitted the ETS to the Office of the Federal Register for publication and codification in 29 CFR 1910 Subpart U).  The text of the ETS, as submitted to the Office of the Federal Register, is available here.  OSHA also launched a website with resources regarding the ETS.

EPA Criminal Penalty for RMP Violations at Cold Storage Ammonia Refrigeration Warehouse

On December 16, 2020, a cold storage warehouse and ice manufacturing facility in East Providence, Rhode Island, entered into a guilty plea with the Justice Department for a “knowing” criminal violation of Clean Air Act section 112(r)(7), 42 USC 7412(r)(7), in connection with EPA’s Chemical Accident Prevention Program and requirement to submit a risk management plan (RMP) under 40 CFR Part 68.  The facility used a refrigeration system to manufacture and store ice and other frozen products, with 19,000 pounds of anhydrous ammonia in the refrigeration process.

OSHA Issues New Comprehensive Worker Safety Guidance – COVID-19

On Friday, January 29, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a new comprehensive worker safety guidance to protect workers against COVID-19, entitled: “Protecting Workers – Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

Biden Executive Order regarding OSHA and COVID-19 Ushers in Changes

On January 21, 2021, President Biden issued the “Executive Order on Protecting Worker Health and Safety,” available here, along with numerous other executive orders addressing COVID-19.  The order directs the Occupational Safety and Health Administration (OSHA) to:

  • Issue revised guidance to employers on workplace safety during the COVID-19 pandemic, by February 4, 2021;
  • Consider whether any emergency temporary standards on COVID-19, including regarding masks in the workplace, are necessary, and if necessary, issue them by March 15, 2021 (expedited approval measures apply to such emergency standards);
  • Review OSHA’s enforcement efforts related to COVID-19 and identify changes that could better protect workers and ensure equity in enforcement;
  • 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
  • Conduct a multilingual outreach campaign to inform workers and their representatives of their rights under applicable law, placing a special emphasis on communities hit hardest by the pandemic.

OSHA and EPA Penalties Set to Increase in 2021

Fines and penalties issued by the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) are set to increase in 2021 as a result of annual inflationary adjustments.

OSHA Provides Insight Into COVID-19 Enforcement Priorities

Despite widespread commentary regarding the lack of COVID-specific regulatory rules in the workplace, the Occupational Safety and Health Administration (OSHA) continues to cite employers for a wide variety of health and safety violations arising from COVID-related investigations.  On November 6, 2020, OSHA issued guidance summarizing which safety standards the federal agency most frequently cites during COVID-related inspections: Respiratory Protection, Recording and Reporting Occupational Injuries and Illnesses, Personal Protective Equipment (PPE), and the General Duty Clause.

Federal Court Affirms OSHA’s Broad Interpretation of its Process Safety Management Standard

Chemical plant owners and operators need to carefully review a recent federal appellate court decision that could substantially expand process safety management (PSM) considerations and related chemical safety and accidental release regulatory requirements under EPA’s Risk Management Plan (RMP) program.

OSHA Fines Healthcare Facilities for Improper Use of N95 Respirators

Employers beware, particularly those in healthcare sectors.  If you provide a NIOSH-approved N95 “respirator” to protect employees from COVID-19, there are a number of OSHA respiratory protection standards that must be followed in a comprehensive Respiratory Protection Program.  The Department of Labor OSHA’s July 21, 2020, national press release makes clear that OSHA will seek the maximum possible penalties for serious violations against companies that do not fully satisfy the respiratory protection standards.

EPA and OSHA Continue Aggressive Enforcement of Accidental Chemical Releases

Accidental chemical releases in the workplace and offsite into the environment continue to be a high-priority enforcement area for both the U.S. Environmental Protection Agency and the U.S. Department of Labor’s OSHA, including releases of anhydrous ammonia and other toxic and flammable substances under the agencies’ RMP and PSM programs.

OSHA Refines Stance on COVID-19 Recordkeeping and Enforcement

On May 19, OSHA issued two enforcement memos regarding COVID-19.  The first of these memos revised OSHA’s requirements for employers as they determine whether individual cases of COVID-19 are work-related.  The second enforcement memorandum OSHA issued on May 19 revised OSHA’s policy for handling COVID-19-related complaints, referrals, and severe illness reports.  These two memos are summarized below.

OSHA Sends Mixed Signals on Enforcement Related to COVID-19 and Employer Obligations

Over the past week, OSHA has issued three separate enforcement-related guidance memos to its regional offices and field staff regarding how and when to bring enforcement actions against employers for failing to protect worker health and safety amidst the COVID-19 pandemic. The first guidance covers workplace reporting and recording of injury and illnesses associated with exposure to COVID-19, while the other two OSHA guidance documents provide a roadmap to employers on how the agency will enforce violations of the OSH Act.

Coronavirus is a Recordable Illness According to OSHA

According to recent OSHA guidance, COVID-19 (i.e., the coronavirus) is subject to the agency’s Injury and Illness Recordkeeping and Reporting Requirements at 29 CFR 1904.  This means that employers who are subject to the OSHA recordkeeping and reporting rules must include and log employee illnesses related to the coronavirus when an employee is infected on the job.  So while the common cold and Flu are exempt from work-related exposures, the coronavirus is not.