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OSHA Targets High-Risk Workplaces in New Covid-19 Initiative (2)

March 12, 2021, 6:25 PMUpdated: March 12, 2021, 10:36 PM

The U.S. Labor Department’s workplace safety agency is rolling out a national emphasis program to focus its enforcement on employers that place the largest number of workers at “serious risk” of contracting Covid-19 while on the job.

“This deadly pandemic has taken a staggering toll on U.S. workers and their families,” Jim Frederick, the principal assistant deputy security of labor for occupational safety and health, said in a statement Friday. “We have a moral obligation to do what we can to protect workers, especially for the many who have no other protection.”

The new Occupational Safety and Health Administration initiative also aims to zero in on companies that retaliate against workers who complain about unsafe or unhealthy work conditions.

President Joe Biden tasked OSHA with establishing a national emphasis program in a Jan. 21 executive order. He additionally directed the safety agency to determine by March 15 whether to issue an emergency temporary standard for workplace safety tailored to the pandemic. Amid business opposition to such a measure, it is unclear whether the agency will meet the administration’s deadline.

Former President Donald Trump’s Labor Department declined to take that step, choosing to rely for enforcement instead on the general duty clause contained in the 50-year-old Occupational Safety and Health Act. A Bloomberg Law analysis showed that just 10% of the agency’s inspections during the first year of the contagion were coronavirus-related.

“This program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure,” Frederick said. OSHA is also abandoning the prior administration’s reliance upon remote inspections, saying it will now resort to them only where on-site surveys can’t be safely conducted.

Targets and Goals

In the program’s enforcement directive, made public on Friday, OSHA set a goal for Covid-19 inspections to account for at least 5% of each OSHA regional office’s annual inspections, which would amount to about 1,600 nationally.

To select inspection targets, OSHA will create lists of employers in selected industries—such as medical clinics, warehouses, stores, and meat processing plants—and provide them to area offices. A list of about 50 types of businesses was included with the program directive.

The area offices also can add businesses to their lists based on information from other government agencies, such as local health departments or the federal Department of Agriculture.

Area offices are expected to continue prioritizing responding to Covid-19 fatalities, complaints, and referrals from other agencies, the directive says.

Bracing for Impact

North American Meat Institute spokeswoman Sarah Little asserted in an emailed statement that her industry is ready for the scrutiny.

“Comprehensive COVID-19 protections implemented in meat facilities since spring 2020 meet or exceed public health and workplace safety guidance and have brought case rates more than 80% lower than in the general population,” Little said. “The Meat Institute has partnered with OSHA to educate members about guidance and enforcement, and we will continue to do so while at the same time advocating for the administration to support frontline meat and poultry workers’ immediate access to vaccines.”

Safety attorney Travis W. Vance speculated that OSHA may have issued the emphasis program in lieu of that anticipated emergency temporary standard.

“I say this because I wonder if OSHA is going to have the resources” to issue an emergency standard or rollout its emphasis program, Vance, a member of the Covid-19 Task Force at Fisher Phillips LLP, said in a phone interview. “Are they going to have the resources to send out inspectors? It seems like for the past four or five years they haven’t been able to do that.”

Whether or not an ETS is issued, Vance said he advises firms that “having written Covid-19 protocols is crucial. It’s absolutely crucial that you develop that plan and communicate that to workers,” to avoid safety citations.

Deviating from Standard Procedure

One significant difference between the Covid-19 initiative and past emphasis programs is that there isn’t a 90-day outreach period prior to the start of enforcement. Enforcement is expected to begin within two weeks, the directive says.

The traditional 90-day outreach phase was being skipped because OSHA has already been educating employers about how to protect workers from Covid-19 infection.

The heightened enforcement regime will remain in effect for up to a year, but OSHA will retain the flexibility to extend or cancel it.

(Updates with industry feedback)

To contact the reporters on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com; Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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