Last year, one of President Biden’s main focuses was trying to enforce the vaccine-or-test mandate for large companies.
But after that was struck down earlier this year by the Supreme Court, the Occupational Safety and Health Administration withdrew its COVID-19 vaccination and testing emergency temporary standard on that completely.
Despite that, safety experts expect OSHA will still prioritize COVID enforcement, but that the agency will also be looking at other key areas, such as protecting workers from hazards of extreme heat. In addition, companies should generally anticipate stepped-up enforcement from OSHA this year, experts say.
"I think this year the number of inspections will rise," says Travis Rhoden, senior workplace safety editor with J.J. Keller & Associates, Inc., a Neenah, Wisconsin-based firm that provides safety and compliance services and publications.
He thinks that will be the result of OSHA making a push to hire more inspectors and also inspectors being able to physically do more inspections.
"You can’t inspect businesses that aren’t open," he says.
While COVID conditions eased up last year, "it still was by no means back to normal," Rhoden says, noting many inspections were still done virtually.
In addition, he says OSHA over time has lost inspectors just from attrition and retirement, but is starting to hire again.
OSHA said in a statement to Newsday that the agency is taking several steps to recruit staff including participating in job fairs.
While it will take time, Mike Billok, a partner in the Saratoga Springs office of Bond, Schoeneck & King, which has local offices in Garden City, believes enforcement will ramp up this year.
"I think they’ll have more on-site investigations, which will result in more violations found and citations," he says.
For fiscal year 2020, OSHA conducted 21,674 inspections, down from 33,393 in FY 2019. On Long Island, OSHA conducted 269 inspections in FY 2019 and only 170 in FY 20. FY 21 data was unavailable.
Billok believes COVID did make it difficult to do in-person inspections and said not being on-site it makes it harder to spot infractions.
While the vaccine-or test-mandate for large companies is withdrawn, OSHA has announced it wants to issue a proposed rule in April to protect employees more broadly from infectious disease exposure such as the flu and SARS, Billok says.
Some COVID rules remain
Still, companies shouldn’t drop their guard on COVID, says John Ho, a former prosecutor with the US Department of Labor and current co-chair of the OSHA workplace safety practice based in Cozen O’Connor’s Manhattan office.
OSHA's prior guidance for companies on how to prevent COVID has not been withdrawn, and employers should be aware of it, Ho says.
OSHA can still cite companies under the general duty clause, and "the Secretary of Labor has stated OSHA will continue to protect workers from COVID in the workplace with its current enforcement tools," which under the general duty clause requires employers to maintain a safe environment free from recognized hazards, he says. For example, if a company suffered a cluster of cases and didn't require social distancing and masks.
As for COVID itself, OSHA in a statement to Newsday said it is "prioritizing and working expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards and will do so as it also considers its broader infectious disease rulemaking."
Beyond COVID, another area employers should watch is heat safety, says Ho, noting OSHA put out advanced notice for proposed rulemaking for heat injury and illness prevention for both employees working indoors and outdoors. For instance, such a rule might address allowing new employees who may not be acclimated to working in the sun to be limited in hours until their bodies can adjust to working in the heat.
Despite widespread under-reporting, 43 workers died from heat illness in 2019, and at least 2,410 others suffered serious injuries and illnesses, OSHA says.
OSHA could currently cite employers for heat violations under the general duty clause, but a formal heat stress standard would be more specific and contain specific requirements to prevent heat-related injuries and illnesses, Ho says.
Angelo Garcia, III, principal industrial hygienist at Syosset-based Future Environment Designs, an indoor air quality and industrial hygiene consulting firm, says he believes respiratory protection also will continue to be an OSHA focus.
He saw OSHA violations last year being given at worksites related to N95 respirators. For example, for those companies where N95 employee use is mandatory, there’s respiratory standards that must be followed including medical clearance and respirator fit-testing to wear one, Garcia says.
Beyond that, he suggests companies check out https://www.osha.gov/sites/default/files/covid-citations-lessons.pdf to see frequently cited COVID violations. They should also review the list of top 10 OSHA violations because those tend to be "their low-hanging fruit," Garcia says.
As is customary each year, OSHA’s penalties have undergone cost-of-living adjustments. OSHA’s maximum penalties for serious and other-than-serious violations have increased from $13,653 per violation to $14,502 per violation. The maximum penalty for willful or repeated violations will increase from $136,532 per violation to $145,027 per violation.