Read Jim Vaughn's take on OSHA's Covid guidelines in light of Supreme Court decision
Interpretation of OSHA’s COVID Guide for Companies
by Jim Vaughn, CUSP
The U.S. Supreme Court has spoken, but don’t rule OSHA out on the pandemic inoculations. The court ruled that OSHA overstepped by ‘ordering’ employers to conduct specific ‘methods’ to meet compliance objectives. In this case, OSHA dictated a method (inoculations) in contrast to their statutory authority to establish ‘performance’ based standards. Performance essentially means ‘outcome.’ The OSHA rules give employers ‘outcomes’ expected, allowing the employer to decide the means of accomplishing the required outcome. There was some tenuous relationship between historical OSHA actions and the Emergency Temporary Standard requiring employee inoculations.
In the United States, Anthrax in 2001 and SARS in 2003 got the attention of the government who began to research the potential for a pandemic illness to cripple the country’s infrastructure. OSHA began around that time to urge employers to prepare pandemic plans, but with little urgency. OSHA’s emphasis has been illnesses created by ‘work’ processes, not person-to-person contagions such as the flu, or in this case COVID. Historically, again tenuous, OSHA made recommendations to industries responding to flood disasters and storm recovery with guidance on inoculating workers against contagions they could be exposed to in that recovery work. This recent action was based on these historical activities by OSHA, but the Supreme Court did not buy it.
This history and recent actions by OSHA, such as the failed Emergency Temporary Standard, tells us what we can expect. There is much speculation that OSHA and the DOL, both run by appointees who work at the pleasure of the administration, could be compelled by some political bent that may influence the current situation. If employers report COVID hospitalized employees, OSHA must investigate. Under the General Duty Clause, “an employer who is aware of hazard remediation but fails to employ them to protect workers, can be cited for General Duty violations.” No employer could deny they have heard of COVID inoculations, or the myriad number of preventative actions recommended by every government agency and news outlet.
OSHA can also pump up the financial hit for the ‘offending’ employer. It is prescribed by law that if a COVID hospitalized employee dies, OSHA could count every employee in that work group as potentially exposed by the negligence of the employer. In that case, fines would apply for every exposed employee and could even be multiplied as a ‘willful’ act. It is hard to believe that OSHA will not cite the lack of inoculations as a remediation for COVID that the employer did not employ. It is also OSHA’s tendency to recommend consent agreements with violating employers, and such an agreement might be global inoculations for employees to avoid high fines. Employers can avoid these potential actions by understanding the risks and having a defensible plan that affords the best protection for employer and employee.
The solution for employers is to have a plan that does protect workers from the ‘actual’ exposure as well as a plan that protects the employer. With COVID, the employer must report a COVID exposure if it is determined that an infected employee was exposed at work. That is key to employer protection, as any protective method employed in the workplace. Employees spend two-thirds of their day away from work. It can be argued that the greater chance of exposure is away from work. However, if an enclosed workspace hosting 20 employees and 12 of them are infected at the same time, there is a strong assumption the exposure is work-related. We advise employers to read the OSHA guidance an approach remediation with practical steps. Knowing the rules protects both employee and employer.
For more information or questions about this interpretation, please email ISPC Senior Consultant Jim Vaughn, CUSP at firstname.lastname@example.org.