For more than a year, American businesses have operated — or ceased to operate — amid the COVID-19 pandemic with no Emergency Temporary Standard from the Occupational Safety and Health Administration (OSHA). That, it appears, is about to change, and the consequences for non-compliant businesses could be substantial.
Doug Parker is about to become the new health and safety sheriff in town, bringing with him a reputation for demanding protocols and strict enforcement. Nominated by President Biden to become OSHA’s first director in more than three years, Parker is expected to receive confirmation from the U.S. Senate and turn OSHA into a larger, far more robust agency than the one that operated during the Trump administration.
A February 2021 report by the Department of Labor Office of the Inspector General was sharply critical of OSHA’s management of COVID-19, noting that during a 10-month period in 2020, OSHA received 15% more complaints but performed 50% fewer inspections than it did during the same time frame in 2019. OSHA has issued multiple documents on COVID-19 safety in the workplace during the pandemic, but those are only guides, not enforceable rules.
Currently leader of California’s aggressive Division of Occupational Safety and Health, Parker is known as a friend to labor and an advocate for worker safety. Under Parker, the California division in November 2020 issued a COVID-19 Emergency Temporary Standard (ETS) that includes demanding regulations for employers regarding employee communications, personal protective equipment, testing and quarantining.
“We know exactly how Doug Parker feels about the need for a COVID-19 ETS because he led the fight in California,” Eric Conn, founding partner of the Washington, D.C.-based labor law firm Conn Maciel Carey LLP, told Business Insurance magazine. “Not only does his nomination make the issuance of a rule more likely, it also raises the possibility of a more onerous rule than we had been hoping for.”
According to Politico, the new ETS is expected to “require employers to provide their workers with masks, have a written plan to avert exposure in the workplace and take other precautions that could kick up complaints from businesses over costs as more states relax restrictions.”
In states that have relaxed COVID-19 rules, including Texas and Mississippi, employers will now be required by law to provide their workers with masks and other personal protective equipment (PPE). Other states already have prescriptive rules in place, some that may be more demanding than the new OSHA regulations. Here’s a state-by-state summary of mask requirements as of April 23, 2021.
Among the California OSHA regulations imposed under Parker, employers are required to compensate workers who are quarantined to perform self-funded, site-wide workplace COVID-19 testing based on three or more employee exposures.
“If three of your employees got sick at spring break, you now have to undertake something that could be hundreds of thousands of dollars of testing,” Conn said. “That’s a killer.”
Start Preparing Now
While implementation Implementation and of the new rules is expected to go into effect quickly, enforcement of new rules won’t take place overnight. OSHA is expected to double its number of inspectors under Parker, but the time required to hire and train inspectors probably means new hires probably won’t be knocking on employers’ doors until early 2023.
In the meantime, there are two key steps employers can take to prepare:
1. Enact or continue workplace protocols designed to keep you operational during the pandemic.
As Kyle Peacock, CEO of San Francisco-based Peacock Construction, said in an interview with Forbes: “A lot of efforts to improve record-keeping were driven by the pandemic, where health screenings and contact tracing were necessary for the safety of employees, subcontractors and visitors while ensuring job sites would not be shut down due to a COVID-19 outbreak.
“Going forward, general contractors will continue to keep these protocols in place. It protects everybody while allowing us to continue to partner with OSHA to keep job sites safe.” Many of the protocols employers have adopted are addressed in the guides OSHA produced in the past year. They include:
- Prevent Worker Exposure to Coronavirus (OSHA 3989)
- Guidance on Preparing Workplaces for COVID-19 (OSHA 3990)
- COVID-19 Guidance for Construction Workers (OSHA 4000)
- COVID-19 Guidance for the Manufacturing Industry Workforce (OSHA 4002)
- Guidance on Returning to Work (OSHA 4045).
2. Comply with OSHA standards that are already in place.
“Employers should prepare for these more aggressive policies by ensuring that their safety and health programs are compliant with rules that, while not enforced during the Trump administration, are still in place and govern American workplaces,” Travis Vance, co-chair of the Workplace Safety and Catastrophe Management practice at employment and labor law firm Fisher Phillips, said to Forbes. “Employers should work to identify and eliminate workplace hazards.”
Existing OSHA standards that may apply to preventing occupational exposure to COVID-19 include:
- Work and a workplace that are free of “recognized hazards that are causing or are likely to cause death or serious physical harm,” as stated in the General Duty Clause of the Occupational Safety and Health Act of 1970.
- PPE requirements for the use of gloves and eye and face protection. Under this standard, employers are required to assess and document work-related hazards, train employees in the use of PPE, and then implement and enforce the use of that equipment.
- Respiratory protection. A shortage of respiratory equipment such as N95 respirators led officials to relax some of the requirements of this standard earlier in the pandemic, but look for focus on fit-testing and medical clearance of employees utilizing these disposable respirators to increase in the coming year.
Sticks and Carrots
Maximum OSHA penalties range from $13,260 per violation deemed “other than serious” to $132,598 for violations determined to be willful. Based on Parker’s record in California, expect the federal government to begin collecting a lot more of those fines. In discussing Parker’s appointment with Politico, one former Obama administration OSHA official observed, “Cal/OSHA has conducted almost as much enforcement in one state in 2020 as the federal OSHA did” altogether in the same year.
The threatened stick of an OSHA-imposed fine shouldn’t be the only incentive for adhering to health and safety standards, however; there are plenty of carrots, too.
Consider these statistics:
- According to a 2018 index compiled by Liberty Mutual Insurance, serious but nonfatal workplace injuries cost U.S. businesses close to $60 billion annually — more than $1 billion per week — in Workers' Compensation Insurance costs. Maintaining a safe workplace and an Experience Modification Factor (EMR) under 1.00 is the best way to contain Workers’ Comp costs.
- In the pre-pandemic year of 2019, more than 2,300 deaths were attributed to injuries that occurred in workplaces subject to OSHA inspection. With many construction projects delayed or suspended, countless businesses closed and more than 70 percent of adults reportedly working from home as of December, the number of non-COVID workplace-related deaths declined to 417 last year.
- According to the Bureau of Labor Statistics, the total number of fatal work injuries that occurred in 2016 and '17 exceeded 10,300 — a rate of more than 3.5 per 100,000 full-time equivalent workers.
In other words, keeping employees safe and healthy — in addition to being legally and ethically the right thing to do — is simply good for business.
To help employers who promote employee health through workplace wellness programs, Alera Group’s partners at Benefit Advisors Network (BAN) will host a webinar on federal regulations regarding such programs on July 14. To register for the one-hour session, click on the link below.
About the Author
Jade Simmers, ASC
Director of Risk Management
HMK Insurance, an Alera Group Company
Jade Simmers joined HMK Insurance, an Alera Group Company, in January 2018 to create the firm’s Risk Management department. He has 25 years of experience in health and safety/risk management, including work in construction. His insurance experience includes work with both carriers and brokers. In his current role, he works with HMK commercial clients to assess, address, and mitigate safety-related and OSHA-regulated hazards, providing regulatory programs and training, job site and facility hazard inspections, safety committee facilitation, accident investigation and on-call consulting. Jade is an OSHA outreach trainer and holds an Advanced Safety Certificate with the National Safety Council (NSC).