Daily News

Even as OSHA ramps up its COVID-19 enforcement, employers’ attorneys say the more than 300 already filed pandemic citations are facing an extraordinary level of legal push-back, with appeals pending for almost half of the cases -- potentially teeing up pivotal rulings on the agency’s authority to require infection-control measures.

In the highest-profile enforcement action so far under OSHA’s new COVID-19 national emphasis program (NEP), the agency is proposing to levy $136,532 in penalties, the largest in a pandemic-related case, against a tax preparation firm it says barred employees from taking infection-control measures.

The United Steelworkers (USW) and American Fuel & Petrochemical Manufacturers (AFPM) are urging President Joe Biden to nominate new members to the Chemical Safety and Hazard Investigation Board (CSB) and increase its budget, arguing that CSB’s current status as a one-person panel has rendered it “dysfunctional.”

OSHA is extending the comment period on its proposed hazard communication standard (HCS) update, giving industry critics more time to build legal and policy cases against the rule after one attorney said it appears designed to aid EPA chemical evaluations by forcing many chemical companies to conduct elaborate new hazard analyses.

The White House is backing House Democrats’ bill that would give OSHA a one-year deadline to craft a workplace violence standard for health care and social services workers, after a long-pending rulemaking process stalled during the Trump administration, though the legislation faces an uncertain path in the Senate.

President Joe Biden is proposing $2.1 billion in fiscal year 2022 funding for OSHA and other Department of Labor (DOL) worker protection agencies, representing an increase of $304 million or 17 percent over the FY21 enacted level to ramp up enforcement and regulatory efforts to protect employees.

Biden recently released his FY22 discretionary spending request that includes $14.2 billion for DOL, a $1.7 billion or 14 percent increase from FY21 that includes the funding hike for worker safety efforts.

Unions and worker safety groups are praising President Joe Biden’s selection of California OSHA (Cal/OSHA) chief Doug Parker to lead the federal OSHA and are urging him to swiftly enact a COVID-19 emergency temporary standard (ETS), which employers’ attorneys fear Parker could model on Cal/OSHA’s strict virus policy.

OSHA has announced its first whistleblower stakeholder meeting under the Biden administration, giving unions, worker safety groups and others a fresh venue to advance calls for dramatically strengthening the agency’s program that protects employees from retaliations for reporting violations of workplace safety rules.

The Chemical Safety Board (CSB), which investigates releases of hazardous or toxic chemicals and other industrial incidents, will soon draw up a new board order as recommended by EPA’s Office of the Inspector General (OIG) that oversees CSB, while embarking on a hiring push to bolster the ranks of its investigators.

CSB Chairwoman Katherine Lemos, who is currently the only sitting member of the board and acting as a one-person quorum, announced the new efforts during an April 2 public meeting, where she noted the management challenges raised by her role as a one-member board.

Worker safety groups are urging OSHA to issue “within the next few weeks” an emergency temporary standard (ETS) for COVID-19, arguing the already-delayed rulemaking is urgently needed, following reports that new Labor Secretary Marty Walsh has directed the agency to update the ETS to reflect new research on the virus.

An industry attorney says chemical makers and users could soon face an “absurd,” onerous mandate to assess the hazards posed by chemicals they produce or use, not only in their own operations but in all possible downstream uses and combinations -- a duty he says could be aimed at supporting EPA’s risk evaluations of existing chemicals.

Former Occupational Safety and Health Review Commission (OSHRC) Chairman James Sullivan says the Biden OSHA’s plan to step up enforcement, particularly on COVID-19 worker exposures, poses an “interesting” test for OSHRC and its precedent setting a high bar for the agency to sustain penalties in some enforcement cases.

A federal district court judge has dismissed a suit filed by Pennsylvania meat-packing plant workers that aimed to force OSHA to take action against their employer for inadequate protections against COVID-19, finding the OSH Act does not allow such suits unless an inspector makes a formal finding of “imminent danger” at the site.

A federal district judge has scrapped the Trump Department of Agriculture’s (USDA) line-speed waiver for some pork slaughterhouses over its refusal to consider threats to worker safety during the rulemaking process -- a win for unions that said the policy was unlawful -- and is giving the Biden administration 90 days to decide its next steps.

The Mine Safety and Health Administration (MSHA), which aims to prevent fatalities and injuries at U.S. mines, is announcing more than $10.5 million in funding for states to provide training and retraining of mine operators and their employees, covering all aspects of mining including emergency preparedness and exposures to dust hazards.

MSHA announced the availability of the grants on March 29 and will take applications through May 27; the agency will then review the applications ahead of awarding grants by Sept. 30.

A small business representative says that shortly before the presidential transition EPA risk managers signaled they were considering occupational exposure limits for uses of the acutely toxic solvent methylene chloride at levels more stringent than those set by OSHA and an occupational hygienists group, in an early marker for the forthcoming rule.

EPA’s acting chemicals chief is detailing a series of steps to toughen reviews of new chemicals, including dropping what critics said were overly optimistic assumptions on workers’ use of protective gear, expanding the scope of the reviews and increasing the use of enforcement orders after approving pre-manufacture notices (PMNs).

A newly published OSHA letter crafted during the final days of the Trump administration says the agency’s injury and illness recordkeeping mandate applies only once in situations where a worker suffers multiple injuries days apart but stemming from the same event, so that companies do not have to “double report” injuries.

Correction Appended

Former Occupational Safety and Health Review Commission (OSHRC) Chairman James Sullivan has left the panel to return to private practice, opening a seat on the three-person panel more than a month before his term was slated to expire and setting the stage for President Joe Biden to name his first OSHRC nominee.

The law firm Cozen O’Connor announced on March 25 that Sullivan was rejoining the firm, which he left for OSHRC in 2017, as co-chair of its OSHA-Workplace Safety Practice Group.

Attorneys representing an employer industry coalition are pressing California OSHA (Cal/OSHA) to amend its controversial COVID-19 emergency temporary standard (ETS) to clarify and ease certain key provisions of the rules, while also tracking “cleanup” legislation in the state legislature to further address uncertainty over the ETS.