Navigating the post-ETS COVID-19 landscape
It is not time to retire the COVID-19 response apparatus but rather re-evaluate it in light of current regulations.
On June 10, 2021, the U.S. Occupational Safety and Health Administration (OSHA) published its Emergency Temporary Standard (ETS) regarding COVID-19. For many employers, this long-awaited ETS proved to be a non-event because it applies only to health care delivery.
Although the limited applicability of the ETS was pleasing to many employers, those outside of health care should delay their victory lap. COVID-19 hasn’t fully gone away — there is fear about a potential next event and still plenty of compliance obligations. It is not time to retire the COVID-19 response apparatus but rather re-evaluate it in light of the current risk and regulatory landscape.
Plenty of state-specific laws and executive orders still apply
The Federal OSHA program is not the sole source of COVID-19-related compliance obligations. Many states conduct their own OSHA programs, which are generally free to impose more rigorous standards than the federal program, and some do just that. California, Oregon and Michigan have been particularly noteworthy in that regard, and many of their mandates remain in place. Maryland, Virginia and New York are among the states that have translated workplace COVID-19 safety regulations into permanent statutes. Executive orders of varying scope and particulars still apply in other states, and even in certain municipalities. Guidance from the Centers for Disease Control or similar authorities is in certain instances an explicit or de facto mandate.
The variation and inconsistency of these orders place a significant burden on multi-location employers. A further complication is the frequent pace of change in such orders or the administrative interpretations and guidance that often follows. Those changes can necessitate an ongoing reassessment of the employer’s response.
Expanded guidance means a greater general duty
OSHA states that its COVID-19 guidance for businesses not within the scope of the ETS is not a standard or regulation, and it creates no new legal obligations. However, this by no means implies it is inconsequential.
By setting forth a recommended standard of practice, such guidance lends additional specificity to every employer’s obligations under the OSHA General Duty Clause. Under the General Duty Clause, the employer has an obligation to protect workers from serious and recognized workplace hazards even where there is no standard. Employers must take whatever abatement actions are feasible to eliminate these hazards. If an employer is found to have failed to implement a particular aspect of OSHA’s guidance, and that failure is deemed a proximate cause of a workplace exposure incident, the employer will be hard-pressed to defend itself.
Re-focus from OSHA to litigation
OSHA may not be the most significant source of employer compliance risk. While OSHA’s enforcement resources are likely to expand, OSHA doesn’t have sufficient staff to visit all the workplaces about which it has received complaints over the past year. And, while OSHA penalties are both substantial and likely to increase, they are small when compared to a runaway jury verdict.
Employers may underestimate the likelihood of litigation arising from workplace safety issues. To be sure, the exclusive remedy protections of workers’ compensation laws will preclude many cases, and prospective plaintiffs would face a notable burden concerning proof of causation. But there remains not just a risk of liability arising from worker infections, but also many other sources of liability that clearly are not barred by workers’ compensation statutes. Personal employment issues have been a frequent source of COVID-19-related litigation.
When litigation occurs, proof of failure to adhere to OSHA guidance or regulations would greatly fortify the plaintiff’s arguments, both as a matter of law and in terms of jury perception. It won’t be necessary to have an actual OSHA citation for plaintiffs to advance this argument.
Talent has new power and new expectations
There is now a greater labor shortage than most employers have ever experienced. Although some relief may occur as schools resume normal schedules, comfort regarding workplace safety is slowly restored, and enhanced unemployment benefits run out, the war for talent will be an enduring fact of life. And for that talent, especially those with options, safety has become a baseline expectation.
Employers who don’t demonstrate the primacy of worker safety, not just through words but through deeds, are going to lose a portion of their current and prospective workforce. Even one adverse experience has the potential to reverberate across a significant number of workers and un-do the efforts put forth to assure people about workplace safety. Employers have to earn the trust of their employees every day, and that begins with providing and demonstrating a work environment free of recognized hazards. By leaning on technology, employers can remain compliant and proactively identify and monitor risks, which will be critical for organizations looking to keep employees safe and retain and attract talent.
The regulatory philosophy has changed
There is a meaningfully different regulatory philosophy at the national level than was the case just a couple of years ago. Businesses are given less benefit of the doubt, the former objective of retiring more regulations than new ones is clearly gone, and principles-based rulemaking is being replaced by detailed prescriptions. Penalties are up, and a big increase in enforcement is in the works.
Businesses may encounter a more adversarial experience with regulators, particularly during administrative proceedings. Accommodation, compromise and gaining the benefit of the doubt may be far less frequent than in the past. There’s no reason to think that COVID-19 matters will be exempted from these trends.
A new seat at your table
Organized labor has long had a role in safety management, extending back to the statute that created the federal OSHA program. The Biden administration is explicit in its resolve to give rank-and-file workers a greater say in safety policy.
A prominent example appears in the ETS, which requires involvement of non-managerial employees in hazard assessment and plan development/implementation. The updated employer guidance for sites not subject to the ETS similarly states “Employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19.”
Managers in some situations may question the wisdom of this collaboration. What constitutes an adequate role or voice in this regard is largely untested. However, this trend serves as another instance of laws and regulations changing in ways that respond to the expectations of a significant portion of the workforce. Evidence of an insufficient engagement of the workforce in safety planning may prompt a surprisingly adverse response on the part of regulators, hearing officers, and juries.
Deal with uncertainty and change
Companies can’t wait for all questions to be answered before taking action on workplace safety. There won’t be perfect consistency between all the governing bodies, nor even in how each applies their own rules. Change will remain the norm. There is no risk-free state. Employers have to accept these truths and address the situation as best they can.
Employers also have to make sure that they are preparing for the next event rather than a repeat of the last one. Nobody knows the form or timing of the next all-consuming crisis, but we can be confident that one will arise. The best plans are those that are pertinent and responsive to a broad spectrum of adverse events, are updated periodically, and make use of technology to ensure consistency, accountability, efficiency, and documentation.
The big picture
COVID-19 has caused a permanent escalation in the visibility and importance of risk management. It has also demonstrated the stark limitations of programs based solely on reaction to changing laws and regulations.
Responsible risk management programs, whether in the context of COVID-19 or otherwise, are based on a thorough understanding of risk exposures, incorporate a comprehensive and thoughtful plan, and reflect the organizational will and resources to do what is necessary to protect all stakeholders. Companies that address COVID-19 in this way will find that high levels of regulatory compliance are a byproduct of their efforts and that little or nothing additional needs to be done to achieve conformity.
Gary Pearce (gary.pearce@aclaimant.com) is chief risk architect for Aclaimant, Inc., and a member of the NU Property & Casualty Editorial Advisory Board.
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