President Joe Biden is directing OSHA to update guidance to employers on how to protect workers from COVID-19 as part of his newly announced plan to transition the country from a pandemic to an endemic approach to combating the virus, prompting fresh questions about how OSHA’s COVID-19 enforcement policies could shift in the coming weeks.
Members of an OSHA advisory panel are expressing support for the agency’s preliminary plans to begin incorporating broad risk-based safety frameworks in its guidance documents and rulemakings, but are cautioning officials to first conduct outreach to inform employers about the new model before developing enforcement materials.
OSHA head Doug Parker says the agency is not formally withdrawing its COVID-19 emergency temporary standard (ETS) for the healthcare sector but will not enforce the rule while a union-led lawsuit plays out, spurring outrage from labor advocates who are urging the agency to ramp up protections and implement a permanent standard for healthcare workers.
Employers’ attorneys say OSHA’s recent COVID-19 enforcement action against an Ohio auto parts supplier includes several suggested mitigation steps that “should be gravely concerning to employers,” arguing that many safeguards the agency is saying are necessary to avoid citations are either impractical or outside its OSH Act authority to require.
Attorneys are cautioning employers to maintain workplace COVID-19 protections including masking and social-distancing requirements despite states’ moves to loosen or drop their pandemic regulations, saying federal policy on the pandemic has become a “moving target” with enforcement still likely in response to larger outbreaks.
OSHA has released a new regulatory interpretation letter outlining its test for when a worker's injuries in a traffic accident are considered “work-related” and subject to the agency’s recordkeeping and reporting requirements, warning employers that injuries sustained outside of a “normal commute” are recordable.
A new federal circuit court ruling appears to set a more demanding standard for OSHA to show that an employer could “reasonably foresee” worker misconduct, in a decision that aims to clarify a “confusing patchwork” of precedent on where the burden of proof lies in cases dealing with the adequacy of an employer’s safety program.
Attorneys say the Supreme Court’s stay of OSHA’s COVID-19 vaccine standard both forces the agency to use the general duty clause as its primary tool to enforce pandemic safety measures, and creates new hurdles for those efforts -- though it could also open the door to a separate rule based on the emergency temporary standard (ETS) for healthcare workers.
OSHA is raising its civil penalties for violations of the OSH Act and regulatory standards by 6.2 percent to account for inflation -- the largest such adjustment in recent memory and one industry attorneys are warning could lead to an even sharper spike in total fines as the agency looks to step up enforcement action across the board.
The Occupational Safety and Health Review Commission (OSHRC) appears to be raising the bar for rejecting employers’ appeals of OSHA enforcement actions when they miss litigation deadlines or otherwise fail to follow required procedures, holding in a new order that appellants must be allowed to show a “good faith effort” at participating in proceedings.