Audit, Compliance and Risk Blog

On November 5, the Occupational Safety and Health Administration (OSHA) published an “emergency temporary standard (ETS)” specifying steps that employers with 100 or more employees must take “to protect unvaccinated employees” from COVID-19 infections in their workplaces. The ETS requires targeted employers to comply with most provisions by December 6, and with requirements for testing of unvaccinated employees by January 4, 2022; it remains in place for 6 months.

However, at least a dozen major lawsuits have been filed against the rules, the effectiveness of which are stayed as of this writing by an order issued by a panel of judges in the Fifth Circuit Court of Appeals. On November 16, the Judicial Panel on Multidistrict Litigation resolved the overlaps by assigning the Sixth Circuit (based in Ohio) to hear the consolidated cases. Depending on the outcome of the litigation, the ETS may or may not ever become effective … but it does illuminate OSHA’s thinking about appropriate employer responses to the ongoing COVID pandemic.

The remainder of this note describes OSHA’s ETS requirements, and the scope of the special authority OSHA is using to adopt it.

On October 27, the US federal Occupational Safety and Health Administration (OSHA) has published an “advanced notice of proposed rulemaking (ANPRM)”, as the first step toward national heat illness prevention rules. This action is the agency’s second recent step to define and combat these hazards – several states already administer such rules. OSHA’s first step was to release new “Inspection Guidance for Heat-Related Hazards” on September 1 (I wrote about it HERE). The remainder of this note summarizes issues raised and questions asked in the ANPRM.

In September 2021, the US federal Occupational Safety and Health Administration (OSHA) announced its first steps toward nationwide enhancement of efforts to protect workers from heat illness. The effort will cover both outdoor work in the sun and ambient heat, and indoor work in hot areas or heat-retaining clothing and equipment. OSHA’s first step was to release new “Inspection Guidance for Heat-Related Hazards” on September 1. The remainder of this note discusses this policy, and identifies additional context that clarifies ambiguous points.

The Occupational Safety and Health Act of 1970 provides the national framework for worker protections and empowers the Occupational Safety and Health Administration (OSHA) to create and enforce worker protection standards. The OSH Act authorizes states to apply to OSHA for delegation of this authority (referred to as “state plan states”). In addition to these agency actions, however, the OSH Act also empowers the workers themselves to stand up for these rights, and to complain to agencies when they believe their rights are being violated. Beginning in 1973, OSHA has promulgated regulations formalizing employee rights to be free of adverse actions by their employers – “discrimination” in the language of the law and regulations – for exercising their rights to self-protection (codified in 29 Code of Federal Regulations (CFR) part 1977). Effective September 3, 2021, OSHA has updated these part 1977 regulations to track US Supreme Court decisions that tend to narrow employee rights somewhat. The remainder of this note summarizes OSHA’s part 1977 regulations and discusses the latest revisions.

As the COVID-19 pandemic has progressed, public health and worker safety agencies have issued and re-issued directions to employers. On August 13, 2021, the Occupational Safety and Health Administration (OSHA) revised its benchmark guidance for workplace COVID-19 risk management. The remainder of this note summarizes OSHA’s newly-revised “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” (I wrote about the initial January 2021 version HERE and the June 2021 revisions HERE). This revision responds to “breakthrough” infections among vaccinated people by incorporating the latest the Centers for Disease Prevention and Control (CDC) recommendations for masking of employees who are fully vaccinated but work in “areas of substantial or high community transmission” – which as of this writing covers nearly 95% of US counties.
The remainder of this note summarizes the guidance (including unchanged elements) and then highlights the new masking guidance.

The Occupational Safety and Health Administration (OSHA) is conducting a formal public review to consider whether to update its Mechanical Power Presses Standard (29 CFR section 1910.217). OSHA issued the Standard in 1971, and adopted the only formal revision in 1988 (to recognize and guide use of sensers to protect press operators). OSHA has also included these devices in a series of “National Emphasis Programs” intended to focus on safety and compliance. OSHA published a request for public comments in the July 28, 2021 Federal Register, seeking suggestions by October 28. The remainder of this note summarizes the longstanding existing requirements, and questions raised by OSHA in this first general review in half a century.

Public health and worker safety agencies have issued and re-issued directions to employers for coping with the evolving COVID-19 pandemic. Most of these directives have been non-binding recommendations, although the Occupational Safety and Health Administration (OSHA) and state OSH agencies have reminded employers that their “General Duty Clause(s)” requires protective responses to recognized hazards. (most recently, in June OSHA revised its generally-applicable guidelines “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”; I wrote about these HERE). Several states have taken the additional step and issued COVID regulations, beginning with Virginia in July 2020 (I wrote about it HERE).

As the COVID-19 pandemic has progressed, public health and worker safety agencies have issued and re-issued directions to employers for copying with evolving situations. On June 10, 2021, the Occupational Safety and Health Administration (OSHA) revised its benchmark guidance for management of workplace COVID-19 risks. The remainder of this note summarizes OSHA’s newly-revised “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” (I wrote about the initial January 2021 version HERE).

The Occupational Safety and Health Administration (OSHA) is proposing several corrections to handrail and stair rail requirements it adopted in 2017 as part of major revisions to its Walking-Working Surfaces Standard (I wrote about those revisions HERE and HERE). The present proposal identifies several typographical errors and ambiguities in the 2017 revision, which OSHA states have led to confusion and questions from employers around the country. The proposal would create a transition period for employers that made plausible interpretations of the provisions to be corrected.

Although the main focus of the Occupational Safety and Health Administration’s (OSHA’s) requirements, that employers protect workers against recognized ongoing hazards, associated with routine activities, employers’ responsibilities also extend to likely emergencies. Several OSHA standards address emergency conditions. These include emergency exit routes (which I wrote about HERE), emergency action plans (which I wrote about HERE), and fire prevention plans (FPPs). The remainder of this note discusses FPPs. Some OSHA standards require employers to create FPPs as part of their compliance programs. Even if your organization is not required by OSHA to do so, local fire codes or state requirements may apply. In every situation, you should consider the benefits of fire prevention and response activities.