DEALING WITH OSHA By Phillip M. Perry


Employers trying to avoid costly OSHA citations are facing new challenges in the form of heightened enforcement activity and greater liability for workplace Covid infections. To lessen their exposure, businesses are retooling their operating environments to ensure compliance with state and federal mandates.


“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 (fisherphillips.com). He views a January presidential executive order, “Protecting Worker Health and Safety,” as a leading indicator of a more robust regulatory fervor. In March, OSHA announced an initiative to increase workplace inspections and develop outreach programs for whistle-blowers. Te agency said it would target some high-hazard industries such as healthcare, nursing homes, food processing, and manufacturing to protect workers from Covid infections.


Te new federal posture may include a larger OSHA oversight staff. “Te 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 (constangy.com). “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.”


“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.”


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 Covid is raising troublesome issues of its own. “Te pandemic, with its greater safety requirements, has increased the risk of OSHA violations,” says Gary Heppner, a California-based independent OSHA safety advisor (riskmanagementaudits.com). He


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added that inspectors will be looking closely at how businesses are spacing personnel, mandating masks, and cleaning the work environment.


OSHA is taking greater interest in machine shops, an environment with high accident rates, according to Heppner. Here Covid is having an effect: Workers, long required to wear safety glasses while using drill presses or hand drills, are now expected to add face shields and maintain appropriate distances from others. Tat can be difficult in restricted environments where people are working in close quarters. Any resulting laxity in safety considerations can spark illnesses and OSHA citations.


OSHA Mandates


Most employers want their workers to be safe and healthy. And given the higher OSHA profile, businesses will be making a special effort to meet state and federal standards. Tat 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 find unexpected violations. Te 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 watchers have been expecting the agency to release regulations which carry the force of law (rather than being simply guidance) before too long. Tese so-called “emergency temporary standards” had been expected before March 15. Tey are still expected any day now, but there is no guarantee they will come to fruition.


How strict will the regulations be? Tat is still to be seen. “Te 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.


TPI Turf News May/June 2021


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