Audit, Compliance and Risk Blog

On June 18, 2020, the U.S. Occupational Safety and Health Administration (OSHA) issued new guidance to assist businesses deemed “non-essential” during the COVID-19 pandemic as they reopen their workplaces. OSHA’s new “Guidance on Returning to Work” sets forth a number of basic principles that OSHA recommends guide employer actions, including specific examples. The document also reminds readers that responsibilities always apply under OSHA’s Employer’s General Duty Clause, references a number of existing OSHA standards that apply to re-opening activities and reopened workplaces, and identifies other sources of guidance and requirements.

President Trump has issued the latest in a series of executive orders (EOs) to reduce and repeal formal federal regulations. This month’s EO directs federal agencies to do so in order to “support the economic response to the COVID–19 outbreak” (EO 13924 “Regulatory Relief To Support Economic Recovery”).

The federal Chemical Safety and Hazard Investigation Board – which usually refers to itself as the Chemical Safety Board or CSB – conducts independent investigations of major chemical accidents, issues accident-specific findings, and offers specific or general recommendations for improved chemical handling and regulation (I wrote about its first set of rules here). In May, CSB issued “Best Practice Guidance for Corporate Boards of Directors and Executives in the Offshore Oil and Gas Industry for Major Accident Prevention.” This Guidance represents CSB’s latest attempt to enhance organizational attention to safety culture issues.

Effective May 26, 2020, the Occupational Safety and Health Administration (OSHA) revised its (interim) enforcement guidance for its inspectors and personnel use when investigating whether an employer properly classified a workplace illness involving COVID-19. This guidance expands and replaces the version OSHA issued on April 10 -- it does not affect the agency’s broader enforcement guidance for cases considering whether an employer unreasonably exposed employees to COVID-19 (which I wrote about here), although it’s easy to imagine scenarios where inspectors could be called upon to investigate both types of potential violations. OSHA states this guidance will remain effective until the present public health crisis ends, unless revised again.

North American employers are required to verify new employees’ identities and eligibility to work in the country. In the United States, employers’ inquiries must confirm eligibility to work in the U.S. when an employee is actually being hired (not just applying), using Form I-9 (Employment Eligibility Verification), which is issued and administered by the U.S. Citizenship and Immigration Services (USCIS) unit of the federal Department of Homeland Security (DHS). USCIS has revised the I-9 form – the new form is dated October 21, 2019 but was only formally published on January 31, 2020. The new version includes minor changes from the preceding one (which was dated July 17, 2017 and set to expire August 31, 2019 but subject to extended viability by USCIS pending approval of the newest version).

The Occupational Safety and Health Administration (OSHA) requires employers to evaluate whether air quality in their workplaces requires respiratory protection for workers, and to establish comprehensive evaluation and respiratory protection programs where necessary. (I wrote about recent revisions here). Late last year, a federal appeals court upheld OSHA’s approaches to workplace testing requirements under the Respiratory Protection Standard (Standard) (Secretary of Labor v. Seward Ship's Drydock, Inc.).

If it’s true that “there’s safety in numbers,” it’s just as true that employees working in isolation risk more severe consequences from most incidents.  Worker protection laws have long recognized this truism in industrial settings where medical emergencies, accidents, or even “bad air” can be fatal to a lone worker who could readily be rescued by co-workers were any present. In recent years, worker protection agencies in most Canadian provinces have adopted requirements to protect “workers working alone or in isolation.” The movement has spread to the United States, including a special focus on hotel workers. Because of these trends, now is a good time to review requirements and compliance programs.

As we approach the winter holidays, retailers everywhere are planning their biggest cycles of annual sales. One doesn’t have to be a grinch to notice that these events can introduce additional hazards for retail employees – and for others who may be shopping. It’s therefore a good time to review guidance for managing these hazards, which was promulgated by the Occupational Safety and Health Administration (OSHA) in 2012. This guidance followed a national review after a highly-publicized incident during which a worker at a Long Island Walmart was trampled to death by a crowd mobbing the store’s Black Friday (day after Thanksgiving) sales event in 2008. OSHA determined that Walmart should have anticipated crowd-related hazards, and fined the company for a violation of the Employer’s General Duty Clause (I wrote about this here)

The Occupational Safety and Health Administration (OSHA) does not routinely inspect all employers, but instead allocates its inspector resources based on the agency’s evolving compliance and enforcement priorities. These priorities include a complex set of national/state/local priorities, such as “national emphasis programs (NEPs)” for process chemical safety or machine guarding, industry focus projects on primary metals industries, and site-specific responses to reported injuries or worker complaints. To meld and rationalize these overlapping priorities, OSHA headquarters periodically establishes weighting programs under which local offices tabulate inspection statistics to demonstrate inspection productivity by achieving higher overall scores. Effective October 1, 2019, OSHA has introduced a revised inspection weighting system, intended to motivate local OSHA offices to revise their inspection priorities.

The Occupational Safety and Health Administration (OSHA) requires employers to evaluate whether air quality in their workplaces requires respiratory protection for workers, and to establish comprehensive evaluation and respiratory protection programs where necessary. In September, OSHA issued minor revisions to its respiratory protection requirements provisions for general industry (29 CFR 1910.134), adding two new quantitative fit testing protocols. Because of these changes,  now is a good time for employers to review requirements and compliance programs.