Taylor White in Texas Lawyer: OSHA Emphasizes Enforcement Effort for COVID-19 Hazards in Certain Industries

Winstead PC Shareholder Taylor White published the second article for his column in Texas Lawyer about labor and employment issues and trending topics. The article is titled “OSHA Emphasizes Enforcement Effort for COVID-19 Hazards in Certain Industries.” The article is below:

“Throughout the pandemic, the Occupational Safety and Health Administration (OSHA) has faced criticism that it was not doing enough to protect America’s workers from COVID-19 hazards. Then, on Feb. 25, the U.S. Office of the Inspector General, the watchdog for the U.S. Department of Labor, issued a report, observing that “there is an increased risk that OSHA is not providing the level of protection that workers need at various job sites.” OSHA is focused on changing that perception in the coming months.

Specifically, on March 12, OSHA began its National Emphasis Program (NEP) – Coronavirus Disease 2019 (COVID-19), which seeks to “ensure that employees in high-hazard industries or work tasks are protected from the hazard of contracting” COVID-19 at work. It further issued an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) in connection with the NEP, which provides “new instructions and guidance to Area Offices and Compliance Safety and Health Officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports.” Employers in the targeted industries need to plan and be ready for what is likely to be an intense enforcement effort related to COVID-19 hazards in the workplace.

Employers in the health care industry are among OSHA’s primary targets. These businesses include (but certainly are not limited to) the offices of physicians and dentists, hospitals, nursing care facilities, and certain retirement communities and assisted-living facilities. Further, employers in other “high-hazard” industries are also primary targets, including (but, again, not limited to) meat processing facilities, slaughterhouses, grocery and discount department stores, and restaurants. Employers in various “essential critical infrastructure” industries are secondary targets of the NEP, according to OSHA. This group includes certain manufacturers, construction contractors, transportation businesses, and repair and maintenance facilities. Businesses in any of these industries are specifically on OSHA’s radar in the NEP.

While COVID-19 vaccinations are increasing, new COVID-19 cases continue to surge off and on throughout the country. In fact, OSHA has observed that “at this time, there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.” This means that employers in the targeted industries should not rely on mandatory vaccines as their sole protective measure, despite the unprecedented vaccination effort underway globally. As OSHA instructs, “[w]orkers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant.”

So, in addition to making the vaccine available to employees at no cost, what can targeted employers do to be ready for OSHA’s enforcement efforts under the NEP? First, they need to assess and address COVID-19 hazards in their workplaces. This involves several basic steps, as a starting point:

• Assess COVID-19 risks in the workplace. While the NEP targets employers in those industries already believed to be “high hazard” when it comes to COVID-19, not all job positions within those industries will necessarily be considered “high risk.” For example, an accounts payable clerk at a hospital may be exposed to lesser, or different, hazards than a nurse in an ICU at the same hospital. So employers should endeavor to assess job positions on an individualized basis involving the employees in those positions.
• Educate workers. Employers should be informing their workforces about COVID-19 hazards in the workplace and what is being done to address those hazards. This training should be conducted in a language the employees understand, and, as a best practice, should be documented with an agenda of covered topics and an attendance sheet that can be easily produced to OSHA during an inspection or investigation.
• Require proper workplace sanitation and proper personal protective equipment. OSHA has various regulatory standards for sanitation and PPE, and further refers employers to the Centers for Disease Control and Prevention recommendations for disinfection and cleaning. Employers need to ensure they are compliant with OSHA regulations with respect to COVID-19 hazards and should endeavor to implement CDC recommendations and require good worker hygiene (e.g., frequent handwashing and use of hand sanitizer) as well. They should refer to OSHA’s Protecting Workers Guidance for more detailed information for what OSHA is likely to look for during an inspection.
• Implement appropriate administrative and engineering controls. Pursuant to the NEP and Interim Enforcement Response Plan, OSHA is likely to ask questions during an inspection regarding what “controls” an employer implemented in the workplace to address COVID-19 hazards. Administrative controls include such things as staggered shifts and isolation or quarantine of workers known or suspected to be exposed to COVID-19, while engineering controls include physical barriers or partitions and installation of fans or other systems to improve ventilation and air circulation. OSHA has published industry-specific guidance to help employers assess and implement an appropriate hierarchy of controls.
• Address employee concerns and complaints regarding safety promptly. One thing that often comes back to haunt employers during OSHA inspections is ignoring (whether intentionally or not) employee concerns about safety hazards. That is, if an employer is aware of a hazard and simply fails or refuses to address it, OSHA is more likely to cite the employer for a “willful” violation or levy a higher monetary penalty. Of course, employers should also ensure they have appropriate safeguards, such as written policies, instructions to supervisors, management training, etc., in place to protect workers from retaliation for raising safety concerns.
• Record COVID-19 illnesses and deaths properly. The first thing OSHA requests during any investigation is a copy of an employer’s OSHA logs, so employers should ensure they are up to date and accurate. With respect to COVID-19, employers must record employee fatalities and new cases of illnesses stemming from COVID-19, if the employee has a confirmed case of COVID-19; if the COVID-19 illness is work-related; and if the employee dies, is away from work, is on work restrictions, transfers to another job, has medical treatment beyond mere first aid, or loses consciousness.

As a best practice, employers should create and maintain contemporaneous documentation of their good efforts on the above issues. Doing so will expedite the inspection and assist in persuading OSHA that the employer is properly protecting its workforce from COVID-19 hazards.

Second, employers need to prepare themselves for what to do when OSHA does show up for an inspection. This likewise involves several steps that should occur before the investigation ever arises:

• Educate managers regarding employer legal rights during OSHA investigations. Employers have many rights during OSHA inspections and investigations, including the right to deny OSHA entry to the workplace without a warrant and the right to legal counsel. Generally, many employers will choose to cooperate with OSHA voluntarily (i.e., without requiring warrants or subpoenas), but their cooperation should be cautious and deliberate. Employers should have a plan to coordinate with OSHA when they arrive and educate managers about that plan.
• Educate nonmanagerial employees regarding their legal rights during OSHA investigations. Absent a subpoena, employees generally have the right to speak or not speak with OSHA, at their choice. Employees further have the right to a representative of their choosing to be present during any interviews OSHA wants to conduct with them. Employers should not encourage or coerce employees one way or the other, but employers absolutely can educate their workforces about what rights they have. As a practical matter, it is best if this occurs before the employer knows of a pending OSHA investigation.
• Designate a member of management who will be on-site during the OSHA investigation. This individual should be generally knowledgeable about the operations at the facility, safety procedures, the employees and their duties, and the location of safety-related documents. This person should be trained on what rights employers have during OSHA investigations, which other members of management should be alerted to OSHA’s presence, and whether the manager should involve inside or outside legal counsel.
• Ensure all appropriate posters and warning signs are in place, and address open and obvious safety hazards around the workplace. OSHA will often conduct a walk-around of the facility immediately after the opening conference with the employer. Employers are well-served to ensure open and obvious safety issues and hazards are remedied (e.g., walking-working surface hazards), warning signs are posted (e.g., confined space signage), and required posters are up (e.g., OSHA-3165 poster).
• Have all safety-related documentation, especially OSHA logs, updated, organized and easily accessible. OSHA will often request safety-related, employee training, and operations documents during investigations. By regulation, employers must produce its OSHA logs to the compliance officer within four hours of his or her request for the same. So having all documents likely to be requested by OSHA ready to go is both helpful and, with respect to the logs, required.

Employers in the targeted industries are likely to see an increase in OSHA inspections and investigations at their facilities. They must be ready to address the same, and their attorneys need to ensure they are prepared to do so. These above lists are the first steps in that regard. As always, inside and outside legal counsel for employers should involve senior management, human resources, and appropriate safety professionals when advising on and implementing these steps to ensure consistency.”

Read the article on Texas Lawyer.

Reprinted with permission from Texas Lawyer© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.  

White is a member of Winstead’s Labor & Employment Practice Group. Throughout his career in private practice, he has served as a devoted resource for employers and managers facing workplace issues in courts and conference rooms. White regularly advises employers on requirements and best practices regarding discrimination, harassment, and retaliation claims under state and federal employment laws, and he often counsels clients on a myriad of litigation avoidance strategies. When in court, White is a zealous advocate on behalf of his clients for claims of breach of contract; employment-related torts; wage and hour violations; trades secrets misappropriation; restrictive covenant breaches; discrimination, harassment and retaliation issues; and, other state and federal law issues stemming from workplace disputes.

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