COMMENTARY
As soon as Joe Biden was sworn in as President of the United States he made it very clear that the Occupational Safety and Health Administration (OSHA) and his friends in the nation’s labor unions were top of mind. If you are an employer, you are already paying the price.
A top priority for major unions over the previous year had been to get OSHA to issue Emergency Temporary Standards (ETS) covering COVID-19 in the workplace. Never mind that they weren’t needed—OSHA had plenty of legal authority to deal with employee complaints—the ETS issue was used as a bludgeon against the Trump Administration during an election year and became the subject of an executive order issued by Biden on the second day of his presidency.
Lacking any real-world justification for the ETS rules, they were held up and are now expected to be released some time in June—long after the federal government has lifted many of the restrictions put in place during the pandemic and many states have done the same.
But the rising wave of vaccinations and declining infection rate did little to daunt the now more union-friendly OSHA from issuing an unwieldy 6,000-word COVID guidance and launching a massive nationwide campaign of workplace inspections, beginning with healthcare facilities and now expanded to restaurants, to be expanded to distribution and manufacturing, among other industries.
Employers are fighting back against OSHA’s COVID overreach, particularly when it comes to hard-to-prove allegations that employees contracted the disease in the workplace instead of elsewhere. Employers also need to be prepared to counter another favorite agency tactic: tainting an employer’s public reputation by issuing press releases intended to damage its reputation, according to attorneys Mark A. Lies, II and Adam R. Young of the Seyfarth Shaw law firm.
Beginning with the Obama Administration, union-friendly OSHA appointees have advocated for the use of press releases as a weapon wielded for the declared purpose of “public shaming” the targeted employers. The releases then can be used by unions in organizing campaigns and result in poisoning the jury pool if further litigation ensues.
“OSHA’s press releases—founded on the mere allegations in OSHA citations—can have damaging effects on an employer’s reputation and business relationships,” Lies and Young point out. “OSHA press releases are often picked up and mentioned in local or national news outlets, magnifying the negative publicity in the region.”
But the consequences don’t stop there. Employers can face adverse professional rankings from third-party safety tracking services and even receive bans from certain customers for bidding on potential contracts or work projects. Worse still, based merely on those allegations, OSHA may place the employer on its Severe Violators Enforcement Program.
Employers must be careful, thoughtful and deliberate in how they respond to OSHA press releases, the attorneys advise. “Media may analyze and comment on the employer’s response (or lack of response) to an OSHA press release. Any comment could have serious repercussions for the employer, and risk worsening the reputational harm.”
A Proactive Strategy
Although an employer may choose not to respond directly to the OSHA release, the attorneys believe the better approach is an affirmative response, which can include the employer’s own press releases and assembling talking points.
“We recommend preparing appropriate comments rather than stating only ‘no comment.’” As a result, Lies and Young suggest the following themes and talking points:
1. Acknowledge that a serious incident or a major inspection occurred.
2. Offer respectful condolences and concern for the health of any injured employees or other individuals.
3. State that the company’s investigation into the accident is ongoing.
4. State that the company has and will continue to work cooperatively with OSHA and any other applicable government agency during their inspections of the worksite.
5. Do not criticize OSHA or its personnel.
6. Respectfully suggest that the company disagrees with OSHA’s issuance of any citations, and that the company will continue to discuss a resolution of the citations. If necessary, also indicate that the company has contested the citation through the appropriate channel.
7. Do not speculate as to the cause of the accident, admit fault, offer an apology or suggest that the company violated any OSHA regulations or its own policies.
8. Do not blame any employee for the occurrence of the accident. Though the accident in fact may have been the result of unforeseeable employee misconduct, a press release or media comment is not the proper forum to assert that affirmative defense or fault on the part of the employee.
9. Do not suggest that any employee involved in the incident is suspected to have been asleep or impaired by drugs or alcohol.
10. Maintain employee privacy; do not disclose the names of any individuals involved in the incident.
11. Note the company’s longstanding commitment to keeping all employees safe and healthy at the workplace.
“With these tips, employers can navigate the stressful process of responding to OSHA press releases and avoid hasty and misguided press releases which create a false impression regarding the employer and its commitment to employee safety and health,” Lies and Young assert.
