Retailers, builders and service pros trying to avoid costly OSHA citations are facing new challenges in the form of heightened enforcement activity and greater liability for workplace COVID infections.
“I think you’re going to see much more aggressive OSHA enforcement under the Biden administration,” says former OSHA head Edwin G. Foulke, Jr., now a partner in the Atlanta office of Fisher & Phillips. He views a January presidential executive order, “Protecting Worker Health and Safety,” and new agency guidelines issued in March as leading indicators of a more robust regulatory fervor.
The new federal posture may also include a larger OSHA oversight staff. “The Biden administration says it wants to double the number of inspectors,” says William K. Principe, partner in the Atlanta office of Constangy, Brooks, Smith & Prophete. “While we don’t know if they will hire that many, it’s reasonable to assume there will be some increase. During the last administration, vacancies weren’t always filled, so OSHA ended up being below the number of federal inspectors that had existed for a very long time.”
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More inspectors mean more boots on the ground. OSHA observers expect an increase in the rate of inspections, along with more citations and higher penalties. And all this comes at a time when the Coronavirus is raising troublesome issues of its own. “The pandemic, with its greater safety requirements, has increased the risk of OSHA violations,” says Gary Heppner, a California-based independent OSHA safety advisor. He added that inspectors will be looking closely at how businesses are spacing personnel, mandating masks and cleaning the work environment.
“OSHA is also likely to step up its investigations of COVID workplace safety protocols at retailers,” says Douglas E. Witte, who represents businesses in labor and employment law matters at Madison, Wis., -based Boardman & Clark. “Are stores taking steps such as offering masks to all their personnel? Requiring social distancing? Doing the proper cleaning?” There has been an uptick in OSHA complaints regarding customers that have not been wearing masks and in citations for failing to have plexiglass screens or other barriers at checkouts or other locations where employees are interacting with the public.
For pool and spa companies, meeting state and federal standards means conforming to the “General Duty Clause” of the Occupational Safety and Health Act, requiring workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.”
While the imprecise nature of the general duty clause allows leeway for employers to account for varying local conditions, it also leaves plenty of room for inspectors to fi nd unexpected violations. The lack of specific guidelines prompted OSHA to issue a comprehensive guidance document earlier this year. “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” lists steps employers can take to reduce potential spread. (Businesses can access the document at osha.gov/coronavirus).
Although the new guidelines are advisory in nature, OSHA observers expect specific regulations soon. “OSHA will likely issue an emergency temporary standard for workplaces,” says Foulke. This standard will carry the force of law, and employers will be fined for non-compliance with its terms.
How strict will the new regulations be? That is still to be seen. “The emergency, temporary standard is not expected to be as employer averse as the OSHA regulations in California but will likely resemble the Virginia standard, which follows CDC guidance,” says Foulke. Employers will likely be required to conduct workplace risk assessments and maintain written COVID-related action plans to include social distancing, masks, sanitation and training.
“One thing I think you’re going to see during the Biden administration is a focus on musculoskeletal disorders (ergonomics, repetitive motions, lifting) and combustible dust,” adds Foulke. “Also, I think sometime this year OSHA will go back to requiring that 250-plus employers in certain industries file not only 300A Summaries but also the 300 logs and the First Report of Injury forms.”
If an employee comes down with COVID and misses work time or goes to the hospital, is the illness recordable as work-related? The answer is often less than clear. “Up until now, OSHA has not been pushing too hard on employers who claim COVID-19 infections occurred outside the workplace,” says Witte. Employers have been operating under fairly liberal standards thanks to OSHA guidance issued in the spring of 2020 that allowed COVID illnesses to be categorized as not work-related if an “alternative explanation” could account for the infections.
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Unfortunately, the term “alternative explanation” is vague, and OSHA does not provide examples. “The guidance is being interpreted by some as indicating that if the employer can point to some exposure away from the workplace, then the case can be deemed not work-related,” says Principe. Others are even taking the position that, because COVID is being spread everywhere, an infection is not work-related unless the employee has continually commuted in their own car, stayed in their own house and not gone to a grocery store or interacted with the public in any way.
That kind of liberal interpretation, though, skirts the edge of justice. “I think you need more concrete evidence that the employee was exposed to an infected person away from work,” cautions Principe. “Perhaps their spouse, children or people they socialized with have the virus, or perhaps they attended a super-spreader event.” Faulty categorizations can be costly. “OSHA issues citations to employers who fail to properly record or report cases,” says Principe. “The agency is often tipped off by whistle blowers, or they get word of infections through hospitals or public health departments.” Penalties for serious violations start at $13,653, although the amount is sometimes reduced in the event of a good faith history. Citations for willful or repeated issues start at $136,532.
Certainly, there is no need to record cases that are clearly not work-related. While an employer may do so out of fear of a citation, being too inclusive can backfire. “Over-reporting can spark an OSHA inspection when the entries from an employer’s logs are entered on their 300A Summaries,” says Foulke. “Those are available for review not only to OSHA but also to plaintiff’s lawyers and community activists like Common Cause. Skewed numbers can impact a business’s ability to get future work from clients.”
So how about those cases that fall into a grey area? “My advice to employers would be that in the case of doubt, record or report the event,” says Principe. “You can always explain the facts, saying that you don’t believe it is work-related for the following reasons, but that you are including the case out of an abundance of caution. This will protect you from a citation.”
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Many OSHA observers believe the Biden administration will tighten criteria, determining that more infections occurred in the business environment. There may be a return to earlier CDC guidance, which mandated that an illness be designated work-related if the employee had been within 6 feet of another COVID-infected worker for a total of at least 15 minutes. “The agency may start tracking infections down to employer facilities if they can do so and support the change by claiming they are trying to halt the spread of COVID,” says Principe.
While the prospect of an OSHA inspection and citations can disturb any business owner, there is some misunderstanding about what the agency can do. “One misconception is that OSHA can come in and shut a job down,” says Mark D. Norton, director of Norton Safety Services, Tucson, Ariz. “It’s not really that easy. In cases of an eminent dangerous situation, they have to go through getting a court order to try to get the process or the activity to stop — but not necessarily to shut down the whole company. And even that doesn’t happen very often.”
Indeed, the federal agency can also be helpful. “Many businesses believe that every interaction with OSHA is negative,” says Norton. “They don’t realize that OSHA also provides consultative services at both the federal and state level.” At the employer’s request, OSHA will inspect the workplace for problem areas. While there is no charge for the service, the employer has to agree to fix whatever OSHA finds. “It’s all confidential, so nothing uncovered by the inspectors gets shared with the compliance side.”
That proactive approach can prevent costly citations down the road. “It’s very important to take the right steps to reduce the risk of infection in the workplace,” says Principe. “This will keep employees from getting sick and the employer out of trouble. I encourage businesses to track the OSHA and CDC websites on a regular basis. Know what the recommendations are. Then, if OSHA shows up at the door, everything will be in order.”
Phillip M. Perry is a New York-based writer and consultant. Comments or thoughts on this article? Please e-mail email@example.com.
This article first appeared in the June 2021 issue of AQUA Magazine — the top resource for retailers, builders and service pros in the pool and spa industry. Subscriptions to the print magazine are free to all industry professionals. Click here to subscribe.