On February 25, 2021, the U.S. Department of Labor’s Office of Inspector General (OIG) issued a scathing report on the Occupational Safety and Health Administration’s (OSHA) performance in response to the COVID-19 Pandemic. The report included the findings of an audit conducted by the OIG to answer the following question:
What plans and guidance has OSHA developed to address challenges created by
COVID-19, and to what extent have these challenges affected OSHA’s ability to
protect the safety of workers and its workforce?
Given that OSHA is responsible for the safety and health of 130 million workers employed at more than 8 million worksites nationwide, it was vital for the OIG to determine whether OSHA was adequately performing its mission. Accordingly, the OIG interviewed officials from OSHA’s national and area offices and analyzed their complaint and enforcement data before preparing its findings.
In conducting its analysis, the OIG noted that OSHA received at least 15 percent more complaints between February 1 and October 26, 2020, than received during the same period in 2019. Despite this increase, OSHA conducted only half as many inspections as during the 2019 period. Overall, during the review period, OSHA issued a total of 295 violations during the 176 inspections it performed related to COVID-19. For perspective, during the same period, state agency workplace safety inspections related to COVID-19 resulted in 1,679 violations out of 756 inspections performed. In other words, OSHA was significantly outperformed by state agencies serving the same function.
The OIG’s report expressed concern that OSHA’s policy of performing remote inspections during the pandemic may have resulted in hazards not being identified and identified hazards going unabated for longer periods of time. Typically, at least one-third of all hazards identified during an OSHA investigation are abated either immediately or within 24 hours. Given that OSHA has not been present at worksites due to the pandemic, employees may be exposed to hazard risks for a more extensive period of time if inspectors are not present to identify those hazards and require abatement.
The report also criticized OSHA’s failure to establish rules or standards related to COVID-19. OSHA has released “guidance” on several occasions during the pandemic, including recently encouraging employers to coordinate with unions to draft COVID-19 policies and informing employers on how to implement social distancing policies. However, “guidance” is not enforceable in the same manner a rule or standard would be because it fails to establish a baseline minimum that employers are required to maintain to ensure a working environment is safe. In a recently issued Executive Order, President Biden demanded that OSHA establish an emergency standard related to COVID-19 by March 15, if the agency determines that such a standard is necessary. It is unclear at this time whether OSHA will issue such a standard or determine one is not required.
In response to OSHA’s subpar response to COVID-19, the OIG recommended that OSHA prioritize very high and high-risk employers for COVID-19 related onsite inspections. The OIG also recommended tracking remote inspections retroactive to February 1, 2020, compare remote and onsite inspections to determine any differences in frequency, timeliness, and abatement of violations, and establish an infectious disease standard to assist employers as employees return to work. OSHA responded to the recommendations by declaring it is working to launch a national program to focus on COVID-19 related enforcement efforts.
Based on the OIG’s assessment and President Biden’s Executive Order, it is likely that OSHA will be much more active in the future than it has been thus far during the pandemic. As vaccines become more available, OSHA will likely begin to conduct more frequent onsite investigations, both related to COVID-19 and other potential workplace hazards. OSHA may also be more likely than before to cite employers for minor or technical violations that are easily abated. Accordingly, it would be prudent for employers to use this time to review workplace safety policies and procedures, both COVID-19 related and otherwise, to ensure compliance with OSHA standards.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.