On June 21, OSHA issued a new Emergency Temporary Standard (ETS) requiring labs, hospitals and other providers to take extensive measures to protect frontline workers against risk of COVID-19 infection (for a detailed analysis of the ETS, see
Lab Compliance Advisor, June 28, 2021). Exactly one week later, the agency issued internal Compliance Directive 2021-02 (the Directive) telling OSHA inspectors how to enforce the new ETS. The 67 pages of instructions shed light on how the agency intends to hand out penalties for violations, which, in turn, offers insights for labs on how to avoid them.
What the ETS Covers
Responding to criticism about health care workers being left unprotected during the pandemic, the ETS lays down a laundry list of things providers must do to guard against workplace COVID-19 infections. Although most of the measures were already required under previous public health guidelines, the ETS also imposes a number of onerous new obligations, including the controversial rule that employers must provide paid leave to workers who are medically removed.
As with other OSHA standards, field inspectors will be visiting workplaces to check on compliance and issuing citations to those found in violation of the ETS. The directive makes it clear that OSHA is determined to enforce the ETS aggressively. The Directive tells inspectors to issue “Serious” citations to employers who don’t pay workers at their regular rate of pay when they work remotely or in isolation as part of a medical removal. That’s a big deal because if your lab gets cited, inspectors could hit you with a “Repeat” citation carrying a fine of up to $136,532 if they find similar violations during subsequent inspections.
But the Directive doesn’t stop there. The Directive also gives inspectors the greenlight to bring in the really heavy artillery, namely, liability for punitive damages under the OSHA Whistleblower Protection Program. Essentially, OSHA is treating medical removal violations as potential acts of retaliation rather than run of the mill health and safety infractions.
Look at the payroll records, interview workers and consider other aspects of the situation, including the employer’s size and resources, and verify that the employer is “appropriately compensating” workers that it medically removes due to COVID-19, the Directive instructs. It also tells inspectors to accrue back wages, insurance premiums and other costs in determining how much the employer owes the worker and how big a proposed fine a citation should carry.
Takeaway
OSHA’s mandate is to ensure workplace health and safety. However, the ETS extends the agency’s authority to matters of pay, benefits and medical leave. Ultimately, this may prove an unlawful incursion into matters beyond OSHA’s jurisdiction. But the agency isn’t backing down and is relying on its authority over whistleblowers as justification. Meanwhile, it’s doubling down, ordering inspectors to be aggressive in enforcement, including via resort to punitive damages. Consequently, labs have no choice but to comply to avoid serious penalties. 