Attorneys are cautioning employers to maintain workplace COVID-19 protections including masking and social-distancing requirements despite states’ moves to loosen or drop their pandemic regulations, saying federal policy on the pandemic has become a “moving target” with enforcement still likely in response to larger outbreaks.
During a Feb. 11 webinar hosted by the employer-side law firm Conn Maciel Carey, attorneys said that even though the Supreme Court ruling blocking OSHA’s vaccine-or-testing emergency temporary standard (ETS) weakened its enforcement authority, some risk of citations remains.
“I don't think OSHA is going heavy on enforcement. It doesn't look that way,” partner Kathryn McMahon said. She noted that OSHA has only issued one general duty clause citation for a COVID-19 outbreak since the high court’s Jan. 13 ruling, despite the agency’s assertions that it would use that authority to regulate pandemic safety in the absence of an ETS.
But some “regulatory risk” remains, she said, especially for employers who see large outbreaks of COVID-19 infections among their staff -- an in particular cases that lead to worker hospitalizations and fatalities.
For instance, she and Amanda R. Strainis-Walker, a partner in the firm, pointed to OSHA’s Jan. 14 enforcement action against an Ohio auto-parts supplier where an August outbreak hospitalized five employees and killed two.
Following an investigation, OSHA proposed a series of citations against the employer for not enforcing “its own policy or federal guidelines on social distancing and mask wearing,” according to the agency’s press release announcing its enforcement action.
That pattern is likely to repeat against employers in similar circumstances, the attorneys said.
“If you're the unlucky facility that somebody walks in with COVID and it spreads like wildfire because no one is in masks and there’s no social distancing and the other protocols are dropped. . . . that's where I think you're going to get caught,” McMahon said.
That principle applies even for businesses in states and localities that have begun lifting mandatory masking mandates for indoor environments -- a list that includes heavily Democratic states like New York, Rhode Island and Illinois -- against immediately loosening their workplace safety policies to match those changes.
“I just caution a little patience; I think we're almost there. I would not advise any of our clients at this point to say, game over, victory declared, and take your masks off,” McMahon said.
And Aaron Gelb, head of the firm’s Midwest OSHA practice, suggested that while the “risk of an enforcement action” is likely still highest for companies that do not have policies that align with local government mandates, some risk of federal enforcement will remain even after those requirements are removed -- particularly during instances of high transmission.
“I think if you're in the county with low to medium transmission rates . . . and you're consistent with prior [Center for Disease Control and Prevention] (CDC) guidance . . . I think [the risk of OSHA enforcement is] pretty low,” he said -- though he emphasized, “I couldn’t say that you’re not gonna have some risk.”
‘More Localized Response’
But McMahon suggested that risk could expire as early as this spring or summer, pointing to recent comments by Anthony Fauci, Chief Medical Advisor to President Joe Biden, and CDC Director Rochelle Walensky that the government may be “moving from a more nationalized response” to the pandemic to “a more localized response.”
She appeared to be referring to Fauci’s Feb. 8 interview with the Financial Times, which quoted him as saying, “As we get out of the full-blown pandemic phase of Covid-19, which we are certainly heading out of, these decisions will increasingly be made on a local level rather than centrally decided or mandated. There will also be more people making their own decisions on how they want to deal with the virus.”
Nevertheless, the speakers also warned employers to be cautious about dropping their existing pandemic policies while OSHA is still working on a permanent standard based on its two emergency COVID-19 rules.
McMahon said the agency could attempt to align a general industry COVID-19 standard with the “programmatic guidance” it issued earlier in the pandemic. That approach set guidelines for masking and distancing rather than the strict vaccination and testing requirements OHSA included in the economy-wide ETS.
However, she noted that if the agency does take that route, it could face legal challenges over the principle that a final rule must be a “logical outgrowth” of its proposed version -- which in this case would be either the vaccination ETS or the separate emergency rule for healthcare facilities.
If the final rule drastically diverges from what OSHA initially proposed in the emergency standard, McMahon said, “there's a real possibility that there could be a challenge based on this doctrine of logical outgrowth.”
She continued that the agency might try to avoid that hurdle by foregoing a permanent general industry COVID-19 standard altogether and instead including coronavirus protections in its in-progress infectious disease standard.
“COVID is a virus that is very contagious. And that's what the infectious disease standard would be designed to control -- the hazard of transmission of an infectious virus in the workplace,” she said.
However, she also noted that any such move would mean a long wait for the final rule, as the infectious-disease standard is following OSHA’s typical years-long path for rulemaking, while the agency has asserted that it is prioritizing a permanent COVID-19 standard to protect healthcare workers, based on that sector’s ETS. -- Karissa Waddick (kwaddick@iwpnews.com)