To state the obvious, the pandemic has resulted in completely unexpected change across the country in so many ways. OSHA’s visibility and role are probably one of the most significant changes to any federal agency. Prior to the pandemic, most businesses outside of specific industries like construction and manufacturing most likely had minimum, if any, interaction with OSHA unless it had a serious injury or fatality. Since then, OSHA has become a household name for any business, large or small, in its efforts to keep workers safe from COVID.
How this newly acquired visibility will affect OSHA and its operations in the long term is an open question. Still, it might be helpful to look at what OSHA is doing today and what we expect next year to help businesses prepare.
Like every organization, the direction of any agency starts with its leadership. In October, Doug Parker was confirmed to head OSHA. Parker, in addition to serving in the Obama administration as a deputy assistant secretary for policy in the Mine Safety and Health Administration, also served as the Chief of Cal-OSHA. Parker’s tenure with Cal-OSHA would certainly suggest more aggressive and robust enforcement efforts in areas such as increased hiring of compliance officers and rulemaking. Indeed, the White House proposed 2022 budget is requesting approximately $28.5 million to restore OSHA’s rulemaking and guidance capacity while seeking to hire more than 155 new compliance officers. Moreover, a Build Back Better bill which passed the House of Representatives in November included significant increases to OSHA penalties, e.g., serious violations from $13,653 to $70,000 and willful and repeat violations from $136,530 to $700,000. Given the potential burden on smaller employers, it will be interesting to see how much Congress is ultimately willing to fund OSHA in the next budget and its appetite for significant penalty increases. However, it is fair to assume that OSHA’s increased visibility over the last two years should help Congress justify additional spending and enforcement tools.
OSHA’s willingness to engage in more rulemaking is already evident. In October, OSHA published an Advance Notice of Proposed Rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings in the Federal Register, which started the rulemaking process for a heat stress standard. OSHA has been particularly vocal about the need for a heat stress standard since the Occupational Safety and Health Review Commission (“OSHRC”) in 2019 dismissed heat stress citations in Secretary of Labor v. A.H. Sturgill Roofing, Inc.[1] In doing so, the Commission called into question OSHA’s use of the general duty clause over engaging in formal rulemaking when a hazard has been recognized.
In addition, OSHA continues to be vocal about focusing on workplace violence as workplace shootings continue to plague the country. This is another area that might see rulemaking for a new standard, although most likely not next year.
Another new area where OSHA is expected and has shown a willingness to engage in are plans to decertify specific state OSHA plans which refuse to adopt a counterpart to OSHA’s COVID ETS in healthcare, such as Arizona and Utah. Looking forward, OSHA may follow this approach for states plans that refuse to adopt its general industry COVID ETS subject to the legal challenges currently facing the ETS before the Sixth Circuit. Despite these threats, it seems very unlikely that OSHA has the resources to take over enforcement of any single state plan, given its limited resources. Even if the proposed budget is passed in its current form, which is also extremely unlikely, OSHA’s enforcement capability (given its size) remains limited, and it simply takes time to hire and train new compliance officers. Whether OSHA is simply pounding its chest on decertification or continues with its threatened plans in earnest will be something to keep an eye out for.
Finally, for near-term enforcement efforts, OSHA has publically stated it is developing an “analytic” approach to identify violators who do not comply with its rule to submit Form 300A data electronically. As a reminder, establishments with 250 or more employees and mid-sized employers classified in specific industries with historically high rates of occupational injuries and illness must electronically submit the form by March 2, 2022, for 2021. Thus, all covered employers should mark their calendars accordingly. OSHA begins accepting submissions on January 2, 2022. The link to do so is: https://www.osha.gov/injuryreporting
Unfortunately, it appears that businesses will continue to face the continued challenges for keeping workplaces safe from COVID in 2022, and thus, OSHA should remain in the national spotlight. However, COVID and legal challenges to the various ETS’s will not be the only significant issues we expect OSHA to take on, and it will be interesting to see how OSHA’s increased visibility translates into how it plans to keep workplaces safe next year and beyond and how it prioritizes workplace safety and health issues.
[1] James Sullivan, a co-author of this blog was one of the OSHRC’s Commissioners when Sturgill was issued.
