OSHA Guidelines Likely To Become Enforceable, Expert Says

Liz Carey

New York City, NY (WorkersCompensation.com) – While guidelines recently issued by OSHA in regard to the Covid-19 pandemic aren’t enforceable now, it’s likely they will be after March 15.

John Ho, management-side labor and employment attorney, and chair of the OSHA Practice Area at Cozen O’Connor in New York City, said that’s the deadline OSHA has been given by President Joe Biden’s executive order to come up with emergency temporary standards for dealing with Covid in the workplace. Employers, he said, should start prepping for it now.

“Right now, it’s just guidance, and OSHA doesn’t enforce guidance,” Ho said in an interview with WorkersCompensation.com. “This guidance was issued in direct response to an executive order that President Biden directed towards OSHA to do a number of things. One of them was to publish revised or updated guidance and another was to consider and implement emergency temporary standards if they determine it’s necessary, which would then be enforceable.”

All indications, he said are that OSHA will do just that. The deadline for doing that, according to Biden’s executive order, is March 15.

For employers, that means going by the new guidance to come up with a plan on how to address the new guidance, he said.

“The recent guidance talks about a lot of different components of what a prevention plan should have. They made it clear that they think a workplace prevention program is the most effective way to mitigate the spread of Covid 19,” he said. “And not surprisingly, it doesn’t just focus it on masks or just ventilation or the policies to keep folks (who are sick) out. It really addresses all of those components. I wish I could just say ‘Do A, B and C’ and you’ll be all set. But I think that laundry list of things really is going to depend on your work environment.”

In particular, Ho said, employers should do a workplace hazard analysis to determine what level of exposure employees may face. For those larger companies with experts in that area, it may be as simple as having them do an analysis of the company’s workplace. Other smaller companies, that may not have that expertise, could benefit from having an independent risk assessment company do the analysis for them. Ho said that OSHA doesn’t require an independent analysis. Additionally, he said, with a little bit of research any employer could do it in-house.

“The new guidance makes clear that OSHA really wants to see employee involvement with that workplace analysis. Their point is well taken that the employees know probably better than anybody what they’re doing on a day-in-day-out basis,” he said. “That knowledge, in conjunction with supervisors looking at the workplace to determine where your exposure points are, makes sense.”

The guidance does encourage employers to make vaccines available at no cost to the employee, and to encourage vaccination. It also says to make sure that the employer doesn’t allow vaccine discrimination. Those two elements could come in conflict, Ho said.

“I don’t see a huge surge of employers mandating it, unless you’re in healthcare and one of those traditional spaces like schools,” he said. “But what OSHA’s trying to do is encourage it. That could be an issue as well. Because, how much do you encourage it? Do you give somebody a $10 gift card, right? Or you buy somebody a car?”

The problem lies with not discriminating against workers who don’t want to get the vaccine for medical or religious reasons, but want the incentive. They could claim vaccine discrimination and ask to be accommodated for their underlying medical condition or religious beliefs.

Ho said that employers should start now to prepare for what could be the coming standards. Pointing to Virginia, the first state to pass permanent Covid-10 safety procedures, Ho said he thought that much of what was in those standards may show up in the federal standards.

“It’s pretty important for employers to look at this revised guidance because I think it’s a little foreshadowing into what we can expect in emergency temporary standards,” he said. “You can ignore them right now at your peril and not necessarily get a citation. But once the emergency standards come down, then if you don’t comply with an individual standard, you can get cited for it.”

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