February 18, 2022 Article

Are We Done Yet? Managing COVID-19 in Year Three

Every business owner understands that vigilance is a critical component for managing legal and financial risks. As we all enter the third year living with COVID-19, we have collected a few of the most common questions posed to us by our clients and prospective clients:

Now that OSHA has withdrawn its Emergency Temporary Standard (ETS), what's on the horizon?

Although OSHA withdrew its ETS effective January 26, 2022, OSHA has not indicated any plans to give up on implementing a permanent regulatory standard intended to address workplace COVID-19 exposures. Remember that the ETS was only intended to be a temporary rule and even while the ETS litigation was underway, OSHA was still moving toward a permanent version.

As reported earlier this week by Bloomberg Law, Assistant Secretary of Labor for Occupational Safety and Health Douglas L. Parker has indicated that OSHA has no plans to roll up its rulemaking efforts. But given the reasoning provided by the U.S. Supreme Court in its January 13 decision, it seems unlikely that any permanent standard that mirrors the ETS would survive subsequent legal challenges. So even if OSHA proceeds to adopt a permanent COVID-19 standard - which may be a weakening assumption at this point - it is hard to predict what that might look like.

Even without a specific standard in place, OSHA does have other options at its disposal. Back in January, Secretary of Labor Marty Walsh hinted at how OSHA might proceed when he said, "Regardless of the ultimate outcome of [the ETS litigation], OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause."

Can we expect to hear from OSHA and how can we reduce the risk of a citation?

To date, OSHA has issued fewer than 800 citations across the U.S. to employers related to a complaint or report of an unreasonable workplace hazard or hazards associated with COVID-19, proposing about $4 million in penalties. That's rather modest given the scope of the pandemic. OSHA prioritizes its COVID-19-related activities by reference to its Revised National Emphasis Program (NEP), which identifies 22 targeted industries whose workers have an increased potential exposure to COVID-19-related hazards. OSHA Area Directors have wide discretion over whether to commence on-site workplace inspections and, in most instances, OSHA will notify an employer of a complaint of an alleged hazard(s) or violation(s) by telephone or letter, and request a response, in lieu of an immediate on-site presence.

To withstand OSHA scrutiny or avoid complaints in the first place, a reasonable starting point is to determine whether the agency has published guidance for your sector. OSHA has produced recommendations and controls for employers in manufacturing, retail, construction, seafood processing, and healthcare, among others, for use in protecting unvaccinated workers and at-risk workers. These recommendations are advisory in nature and intended to assist employers in recognizing and abating COVID-19-related exposures. To determine whether an employer has satisfied the general duty standard for compliance - providing a work environment "free from recognized hazards that are causing or are likely to cause death or serious physical harm" - OSHA will consider the extent to which an employer has implemented and enforced an appropriate combination of the mitigation strategies and controls it has recommended for COVID-19.

Do you think there will be more rules/regulations like ETS coming down the pike? Is the state likely to step in?

At present, the Omicron surge continues to subside. Nevertheless, most public health experts believe that the SARS-CoV-2 (COVID-19) virus continues to mutate and will persist into the future in some form.

The Supreme Court really made clear in its decision back in January that OSHA had exceeded the scope of its authority with the ETS. Even though OSHA has not walked away from rulemaking in connection with a permanent standard, if any specific standard emerges it will likely look quite different than the ETS. Here in Maine, Governor Mills has clarified that she has no intention of substituting something at the state level intended to take the place of the ETS with respect to private sector employers outside the health care context.

What about lawsuits? Can we expect a spike in COVID-19-related legal claims?

Lawsuits are being filed against employers involving a variety of different statutory claims and legal theories. Some of these involve individual plaintiffs and others involve class actions. Compared with other states, there have been far fewer filings in Maine since the beginning of the pandemic. Regionally, while there have been fewer than 100 COVID-19-related lawsuits filed in the 5 northern New England states, almost 900 lawsuits have been filed over the same period in New York, New Jersey, and Connecticut.

Admittedly, our crystal ball remains cloudy. Our advice to employers is to maintain vigilance in tracking the periodic updates from public health authorities on isolation and quarantine periods; emphasize open channels of communication with your employees about their health status and ongoing concerns; continue to encourage employees to become fully vaccinated and get booster shots; and manage specific employee refusals to comply with your exposure management policies on an individual, case-by-case basis.