The Department of Labor (DOL) Office of the Inspector General (OIG) has criticized the Occupational Safety and Health Administration (OSHA) for inadequate COVID-19 enforcement and advocated for the adoption of Emergency Temporary Standards (ETS), which OSHA is expected to issue very soon.
The OIG report acknowledges the political pressure the agency has had to operate under over the past year. “Due to the pandemic, OSHA has received a surge of complaints in a matter of months, while garnering the attention of Congress, labor unions, and media with requests to act swiftly on behalf of the 130 million workers at more than eight million worksites nationwide whom OSHA is responsible for protecting.”
One problem with attempting to evaluate how OSHA fared in fulfilling its duties is that the changed environment makes it difficult to compare the agency’s enforcement record in 2020 with what it did in 2019.
The OIG notes that restrictions on onsite inspection and travel led to a dramatic decrease in inspections, which dropped from more than 26,000 in an eight-month period in 2019 to approximately 13,000 inspections in the same timeframe in 2020. OSHA received 15% more complaints but performed 50% fewer inspections in a 10-month period in 2020.
The report also found that states operating OSHA state plans did better than the federal agency. During the pandemic, OSHA issued a total of 295 violations arising from 176 COVID-19 related inspections, while 1,679 violations arose from 756 COVID-19 related inspections that were conducted under State Plans.
The report acknowledged that the federal agency took a number of actions directly aimed at addressing the new risks associated with COVID-19, although none of these could overcome the limits that prevented OSHA from taking more vigorous enforcement action.
“Increased complaints, reduced inspections and most inspections not being conducted onsite subject employees to greater safety risk,” the OIG said. This was said to have led to “an increased risk that OSHA has not been providing the level of protection that workers need at various job sites.”
The report also revealed that most OSHA inspections during the pandemic have taken place remotely, limiting what the inspectors would have observed if they had been on site. “Workplace hazards may go unidentified and unabated longer, leaving employees vulnerable,” the OIG said.
Under the Trump Administration, then Secretary of Labor Eugene Scalia argued that OSHA did not need to issue COVID-specific rules because the voluntary guidances it issued would be enforceable under the general duty clause of the Occupational Safety and Health Act, which requires all employers to maintain a safe and healthy workplace.
Pushing for an ETS
“OSHA has not issued an emergency temporary standard during the pandemic for airborne infectious diseases that may better protect employees’ health and safety at worksites,” the OIG asserted. To help control the spread of COVID-19, the office said OSHA should consider whether COVID-19 should be classified as a “grave danger” and reconsider whether an ETS would be necessary to protect employees from such danger.
Of course, the agency is currently at work on an ETS due no later than March 15 under direct order from President Biden.
The OIG made several other recommendations that were accepted by OSHA, including improving the agency’s onsite inspection strategies by prioritizing employers whose employees are at greatest risk of COVID-19 exposure. It was also suggested that remote inspections be tracked both retroactively and prospectively; and that they be compared to onsite inspections, including a quantitative analysis of frequency and timeliness of hazard abatement.
Attorneys for the law firm of Jackson Lewis point out that the report is not without its flaws, which the OIG also acknowledged. The report was concluded before OSHA could begin to count and draw numerical comparisons between onsite and remote COVID-19 inspections. As a result, the OIG was forced to rely on anecdotal statements by anonymous OSHA officials to support its conclusions.
The OIG was unable to demonstrate whether or to what extent employers actually abated hazards during the pandemic. One anonymous official reported that the agency required employers to abate hazards in all cases except three, and contended that it will not verify hazard abatement until it develops a program that will allow it to conduct monitoring inspections of the targeted employers.
There also is a possibility that the OIG was comparing apples and oranges when looking at 2019 and 2020 inspections data because healthcare facilities, retail stores and restaurants led in pandemic-era complaints, with the highest numbers involving alleged violations of respiratory protection, recordkeeping and PPE standards, violations that were not usually what it found prior to 2020.
“The report declined to provide a pre-pandemic comparison. OSHA’s list of most frequently cited items in 2019 painted a very different picture,” the Jackson Lewis lawyers note. Prior to the pandemic, the most common violations were fall protection, hazard communication, scaffolding and “Lockout/Tagout” infractions, which are hazards not common in hospitals, nursing care facilities, restaurants or retail stores.
Employers can expect to be subject to more COVID-19-related onsite inspections, the attorneys warn. “It is imperative for employers to review guidance documents OSHA provided during the pandemic,” they say. “If the guidance addresses subjects that affect the employer’s business, then incorporate those recommendations into the business’s standard operating procedures.”
Of course, employers should keep an eye out for the COVID-19 ETS, which OSHA is expected to issue no later than by March 15. For an idea what may be included in that standard, see OSHA’s most recent 6,000-word guidance relating to COVID-19, which also was issued under presidential order on Jan. 29.
