OSHA's COVID Guidance, National Emphasis Program, and Pending Emergency Temporary Standard on COVID-19

May 10, 2021 | Stephen A. DiTullio

Immediately following President Biden’s inauguration in mid-January, among his initial directives were that OSHA should issue workplace safety COVID-19 guidance (Guidance) by early February and further issue a mandatory emergency temporary standard (ETS) on COVID-19, including whether to require the wearing of masks in the workplace, by mid-March.  While OSHA issued its Guidance in late January, the ETS still has not been issued.  However, it is anticipated that it will be by the end of May.  In the meantime, OSHA issued a National Emphasis Program regarding COVID that went into effect in mid-March.  This article will briefly address what these three OSHA initiatives mean or will mean for employers throughout Wisconsin.

OSHA's COVID Guidance

Significantly, the Guidance applies to virtually all employers.  However, the Guidance does not impose any new legally required obligations on employers.  That being said, the Guidance is important for several reasons and should be carefully considered and followed at least to some degree by employers.

First, the Guidance specifically reminds all employers that OSHA has a general duty clause requiring employers to provide employees with a safe and healthful workplace, and this certainly applies to COVID.  So, an employer that chooses to ignore basic COVID safety rules (masks in common areas, social distancing, reminders about hand washing, strictly enforcing that individuals who are sick must not be at work, etc.) runs the risk of violating OSHA's general duty clause if employees become sick from exposure at the workplace.

Second, the Guidance notes that the most effective manner for employers to mitigate the spread of COVID is to implement a COVID prevention program that has certain elements as listed by OSHA in its Guidance, including: assigning a workplace coordinator responsible for all workplace COVID issues; completing a COVID hazard assessment to identify where and how workers might be exposed to COVID in the workplace; and identifying measures that will limit the spread of COVID, including physical distancing, use of barriers, face coverings, ventilation, PPE and cleaning, disinfecting, and providing sufficient hygiene supplies.  If your business has not established a prevention program with at least these items, it is recommended that it does so.  While failure to do so will not automatically result in a citation of a specific regulatory violation, it could be considered in a citation for failure to follow the general duty clause -- especially if your business has a significant COVID outbreak.

Third, the Guidance sets forth other practices that should be considered as part of a prevention program including, but not limited to:  policies and practices to protect workers at higher risk for severe illness; educating and training workers on COVID-related policies; performing enhanced cleaning and disinfection, particularly after workers have been confirmed with COVID; providing guidance to employees on screening and testing; and implementing anti-retaliation processes for workers who voice concerns about COVID-related hazards.

National Emphasis Program and Increased OSHA Enforcement

Although the National Emphasis Program (NEP) has not singled out many industries as high risk industries for enforcement purposes, it is important to understand that the NEP is designed to increase OSHA enforcement by prioritizing enforcement efforts on workplaces with a high risk of exposure.  This is one example of increased OSHA enforcement that will significantly distinguish the Biden Administration from the Trump Administration – and such increased OSHA enforcement could impact all businesses.
Given the overall lack of support for OSHA enforcement activities by the Trump Administration, all businesses should be aware that the Biden Administration will not be taking the same limited approach to worker safety.  Already OSHA has begun to fill vacancies and the NEP is a clear signal that there is "a new sheriff in town" regarding worker safety.  This means that your business should ensure that it has taken all necessary steps to comply with COVID safety measures as set forth in the Guidance and when the ETS as discussed below is issued (as well as general non-COVID safety measures in your workplace).

In fact, since the Guidance was issued on January 29th, OSHA has received more than 13,000 complaints and has conducted approximately 1,600 inspections. Additionally, OSHA has announced more than 300 inspections resulting from citations and proposed penalties of nearly $4 million.

The NEP in summary has listed as priority targeted industries such as health care businesses -- physicians' offices, hospitals, ambulance services, dentistry, retirement communities, and assisted living facilities, as well as non-health care businesses such as meat processing, supermarkets, department stores, restaurants, and general warehousing and storage.  The NEP, which went into effect immediately on March 12th, mandates that 5% of each OSHA region’s total inspections must be related to COVID-19.

The Pending Emergency Temporary Standard on COVID (ETS)

President Biden ordered OSHA in January to consider the need for a national rule covering COVID through an OSHA emergency standard.  The ETS was scheduled to be issued by mid-March, but has been delayed likely for numerous reasons, including the delay in appointment of the new DOL Secretary, recent changes in scientific data regarding COVID that would need to be reflected in the ETS, and a re-evaluation of the ETS due to significant gains in the nation's vaccination program.  When the ETS is finally issued, it is expected to apply to all or most employers.  Therefore, it is extremely important to regularly review the news regarding the announcement of the ETS and what it will cover.  We will also provide an update once the ETS is issued.

The current status is that the draft ETS was sent to the White House in late April or early May, and further meetings with unions and business groups were scheduled in early to mid-May with a final ETS likely to be issued sometime between the middle and the end of May.  While we do not know yet the details of the ETS and its coverage, it is anticipated that it may include rules for implementing a COVID safety plan, providing masks to employees, enforcing social distancing, cleaning and disinfection, and certain worker training requirements.  When the ETS is issued, it will take effect immediately and can remain in place by law for up to six months (although it could be subject to certain legal challenges in court).

Significantly, there has been discussion that the ETS will guarantee pay and benefits to workers who take leaves because of potential COVID exposures or diagnoses.  That might be one of the reasons for delay of the ETS as such wage and hour issues are typically decided by the DOL's Wage and Hour Division, not OSHA.

Furthermore, as the pandemic has somewhat lessened with the increase of vaccinations, it is possible that OSHA's authority to issue a temporary standard might be challenged on the basis that there no longer remains a "grave danger" created by COVID.  While this is an interesting possibility, it still remains likely that perhaps a limited ETS will be issued -- one that is less comprehensive than envisioned in January when the vaccination program had just begun to gear up.

At this time, the key point is to stay aware of the announcement of the ETS, the increased enforcement initiatives of OSHA through the NEP and otherwise, and at a minimum consider some or all of the points identified in the Guidance.