OSHA watch
COVID-19 Vaccination and Testing ETS is back
Even though the Supreme Court is now weighing the decision and many feel the ETS will be stayed, the ETS remains in force nationwide until the decision is issued. A surprise decision on Dec. 17, 2021, by the conservative Sixth Circuit Court of Appeals dissolved the temporary "stay" that was imposed earlier by the Fifth Circuit Court of Appeals. The notice on the website indicates the agency "will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard's testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance."
To show a good faith effort, covered employers should develop a written plan, train managers, provide paid leave for employees to get vaccinated, determine the vaccination status of all employees, decide if a testing option will be offered, communicate policies, including how to request a reasonable accommodation, and enforce the masking requirement for unvaccinated employees by January 9. For any employee that remains unvaccinated and employed by February 8 employers must follow the COVID testing mandate of the ETS.
Updated FAQs address some of the confusing testing elements of the ETS (See Section 6)
Healthcare ETS withdrawn
Under the OSH act, an ETS is effective until superseded by a permanent standard, which should be within six months of the ETS's promulgation. The Healthcare ETS became effective June 21, 2021, and was withdrawn on December 21, 2021. While the non-recordkeeping portions of the Healthcare ETS were withdrawn on December 27, the requirements will be vigorously enforced under the General Duty Clause and the Personal Protective Equipment (PPE) and Respiratory Protection standards. The recordkeeping provisions requiring COVID-19 logs and case reports were not withdrawn as they were promulgated under separate provisions of the OSH Act. It appears that healthcare facilities with 100 or more employees will be subject to the Vaccination and Testing ETS. FAQs (2J) notes, "however, that if the Healthcare ETS is no longer in effect at any point while this ETS is in effect, some employees working in settings covered under section 1910.502 may become covered by this ETS."
Plans are to continue to work expeditiously to issue a final COVID-19 healthcare standard and issue a Notice of Proposed Rulemaking (NPRM) for an infectious disease standard covering all industry sectors in April 2022. The agency said the new standard will address airborne, droplet, and non-bloodborne contact diseases.
COVID-related initial penalties top $4 million
As of December 31, 2021 violations issued from COVID-related inspections totaled $4,034,288. The list is public and updated regularly.
Comment periods extended
- Comment period on the COVID-19 vaccination and testing ETS extended to January 19
- Comment period on proposed rule aimed at protecting workers from extreme heat exposure in indoor and outdoor settings extended to January 26
- Nominations to serve on Federal Advisory Council on Occupational Safety and Health extended to January 31
Regulatory agenda released and included proposed rule to revoke Arizona's State Plan
Arizona is the only state that hasn't issued an ETS on COVID-19 for health care workers, which it was required to do within 30 days of the federal release (in June). The regulatory agenda includes a proposed rule to revoke Arizona's state plan, but the state is in the process of finalizing the plan so it may not happen. Noteworthy updates on standards include:
- A notice of proposed rulemaking regarding an update to its standard on lockout/tagout (1910.147), which will address computer-controlled lockout/tagout equipment
- Update to the standard on walking-working surfaces (1910.22), which will be "cleaning up" some handrail heights and tread issues
- A Small Business Advocacy Review (SBAR) panel will be convened to discuss a standard on the prevention of workplace violence in health care and social assistance
- A report from an SBAR panel on emergency response and preparedness is expected soon
- A stakeholder meeting regarding the standard on process safety management and prevention of major chemical incidents
- Plans to issue an advance notice of proposed rulemaking on blood lead level for medical removal (not changing the PEL, just the trigger for medical removal)
Form 300A posting deadline: February 1, 2022
The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted where notices are customarily located in workplaces, no later than February 1, 2022, and kept in place until April 30.
Resources on tornado recovery
For resources on tornado recovery, visit the webpage for tornado preparedness and response.
Cal/OSHA
- Covid-19 ETS revised
The updated guidance includes revisions on investigating and responding to COVID-19 cases in the workplace, face coverings, testing and exclusion, and return to work criteria. The revised provisions go into effect Jan. 14, 2022, and remain in effect until April 14, 2022, when a permanent regulation is expected.
- Expanded powers took effect January 1
Cal/OSHA has two new categories of workplace safety violations "enterprise-wide" and "egregious," subject to the same penalties as willful or repeated violations. The categories expand the agency's powers as explained in the October 21 Advisory.
- Requirement to report high warehouse industry injury rates
A new state law regarding the use of productivity quotas at warehouse distribution centers requires Cal/OSHA to inform the state's labor commissioner whenever an employer or a site has an annual employee injury rate at least 1.5 times higher than the warehousing industry's average annual injury rate.
Oregon OSHA updates COVID rule
The adoption of the rule formalizes updates to the rule the division had already made on a temporary basis in summer 2021. Amendments include a clarification on training requirements, minor changes to enhance readability, and an exclusion of outdoor workplaces to the rules on masking requirements.
Recent fines and awards
Florida
- Two residential contractors, Alejandro Carpentry Inc. and Lighthouse Property Innovations LLC of Holmes Beach were cited after scaffolding failed and one worker fell to his death and another was seriously injured at a Bradenton Beach project. Citations included failure to have a competent person train workers, failure to properly design the system, failure to anchor and brace, and failure to report the fatality within 8 hours. Alejandro Carpentry faces $41,739 and Lighthouse Property Innovations faces $4,096 in penalties.
- A Jacksonville-based roofing contractor, Travis Slaughter, owner of Great White Construction Inc. and Florida Roofing Experts has failed to pay over $2.2 million in penalties for more than 48 violations. He now faces possible incarceration.
Georgia
- A Milledgeville grocery store, Johnnie McDade Grocery, faces $9,362 in penalties after an inspection found the employer failed to protect employees from exposure to coronavirus and other safety hazards.
Massachusetts
- UHS of Fuller Inc. and UHS of Delaware Inc failed to comply with an OSHA subpoena for documents and were ordered to pay over $30,000 in attorney fees by the US District Court. Among other things, the subpoena requested video footage of workplace violence incidents involving employees at the behavioral health facility.
New York
- Richmond Construction Inc. of Queens faces $374,000 in penalties after a worker fell to his death at a Brooklyn worksite. The company was cited for failing to provide and require the use of all required safeguards related to fall protection and failing to properly train workers.
- A Rockland County roofing contractor, ALJ Home Improvement, was again cited for failing to protect workers from fall hazards and faces $244,581 in penalties.