January 2021 OSHA Updates

Cal/OSHA sued by group of businesses over updated COVID-19 prevention standards

Businesses are suing the California Division of Occupational Safety and Health (Cal/OSHA) over updated coronavirus workplace safety rules, saying new mandates could cost them their businesses, according to ABC10.

The National Retail Federation, the National Federation of Independent Businesses (NFIB) along with small businesses Relles Florist, Mayfield Equipment Company, and Abate-A-Weed, Inc. all filed the lawsuit Dec. 16 in San Francisco.

The lawsuit is in response to updated COVID-19 Prevention Emergency Temporary Standards posted November 30.

It details many safety standards for businesses and employees including rules that businesses have to pay for employee COVID-19 tests.

The Emergency Temporary Standards also require businesses to give workers paid leave for 14 days if they were exposed to COVID-19, even if a test comes back negative.

That regulation is despite the CDC recommending a 7-day quarantine in that situation.

The National Federation of Independent Business says the 14-day exclusion rule is what can impact small businesses the most. 

NFIB said Cal/OSHA exceeded its authority by not having public comment before bringing the updated Emergency Temporary Standards.

They also say that Cal/OSHA is not in charge over wages and benefits but say the paid leave requirement mandated ends up regulating that which is out of their authority.

OSHA Updates Targeted Workplaces Inspection Program

OSHA is updating its inspection program that targets its enforcement resources to establishments with the highest rates of injuries and illnesses.

The Site-Specific Targeting (SST) Directive is OSHA’s primary targeting program for non-construction establishments with 20 or more employees. The agency selects establishments based on injury and illness data employers submitted on Form 300A for calendar years 2017-2019. Business use Form 300A to report a yearly summary of illnesses and injuries.

The new directive, effective Dec. 14, 2020, replaces one from 2016, and includes the following:

• High-Rate Establishments: The SST plan selects individual establishments for inspection based on CY 2019 Form 300A data. Because average DART rates vary widely among industries, OSHA will set one DART rate for manufacturing and a different DART rate for non-manufacturing as objective selection criteria. OSHA says this allows it to equally target manufacturing and non-manufacturing establishments.
• Upward Trending Establishments: For this new category, OSHA will identify establishments with rates above their industry’s national average in CY 2017 that have continued to trend upward in both CY 2018 and CY 2019 and continue to remain above their industry’s national average.
• Low-Rate Establishments: To verify the reliability of the Form 300A data reported to OSHA, the agency will generate a random sample of establishments with low DART rates using the CY 2019 data.
• Non-responders: To verify data quality and accuracy reported on the Form 300A, OSHA intends to also include a random sample of low-rate establishments from the CY 2019 data. This is intended to discourage employers from not complying with their reporting obligation.

In a change, the new directive allows records-only inspections to occur when a compliance safety and health officer determines incorrect data led to an establishment’s inclusion in the program. This means OSHA will conduct a full inspection only when the employer has an actual elevated injury and illness experience.

Signs point to federal OSHA issuing rule as states continue to modify COVID-19 rules and guidance

As the transition in presidential administration draws closer and COVID-19 cases continue to increase in certain parts of the country, it appears increasingly likely that OSHA will undertake a rulemaking relating to COVID-19, according to EHSlawinsghts.com.  

Additionally, state plan OSHA agencies continue to revise and issue guidance relating to their own rules, including in Virginia, Oregon, California, and Michigan.  (Washington state separately issued a regulation allowing enforcement of public health orders under its worker safety standards

With the upcoming change in administration and President-elect Biden’s stated focus of aggressively combating the coronavirus pandemic in the first 100 days, it is increasingly likely that an OSHA COVID-19 rulemaking is on the horizon.  

 

Will OSHA update its emergency response standard?

OSHA currently regulates aspects of emergency response and preparedness, but they do not address the full range of hazards or concerns currently facing emergency responders, and other workers providing skilled support, nor do they reflect major changes in performance specifications for protective clothing and equipment. 

OSHA pressured to prevent workplace violence in healthcare 

OSHA has gathered information on the issue of workplace violence in health care and social assistance, and voluntary guidelines were published in 1996. A 2014 update to the guidelines empowered the agency to use of the 5(a)(1) “general duty clause” in enforcement cases involving workplace violence in health care. A broad coalition of labor unions and the National Nurses United are demanding that OSHA issue a permanent standard preventing workplace violence in healthcare. 

Demand grows for an OSHA standard to control spread of infectious diseases

Employees in health care and other high-risk environments face long-standing infectious disease hazards such as tuberculosis (TB), varicella disease (chickenpox, shingles), and measles (rubella), as well as new and emerging infectious disease threats, such as Severe Acute Respiratory Syndrome (SARS) and pandemic influenza. Health care workers and workers in related occupations, or who are exposed in other high-risk environments, are at increased risk of contracting TB, SARS, Methicillin-Resistant Staphylococcus Aureus (MRSA), and other infectious diseases that can be transmitted through a variety of exposure routes. 

OSHA is examining regulatory alternatives for control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease. Workplaces where such control measures might be necessary include: health care, emergency response, correctional facilities, homeless shelters, drug treatment programs, and other occupational settings where employees can be at increased risk of exposure to potentially infectious people. A standard could also apply to laboratories, which handle materials that may be a source of pathogens, and to pathologists, coroners’ offices, medical examiners, and mortuaries. 

Where does OSHA stand on drug testing and safety incentive programs?

OSHA recently clarified, through a memorandum to the field, that it does not prohibit post-incident drug testing or safety incentive programs. The agency might change regulatory language to reinforce its current position on implementing post-incident drug testing and safety incentive programs.