Inside OSHA

September 22, 2020

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Lawmakers have agreed to extend current funding for OSHA and other executive agencies to Dec. 11, delaying a battle over potential fiscal year 2021 budget cuts or boosts until after the election -- and likely after the Senate battle over confirming a successor to the late Supreme Court Justice Ruth Bader Ginsburg.

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OSHA is continuing to unveil citations against employers over alleged failures to protect their workers from COVID-19, but labor unions and other Trump administration foes say the small financial penalties the agency is seeking are further evidence that its response to the pandemic has been unacceptably weak.

A bipartisan group of House moderates is backing a compromise proposal on COVID-19 relief including a limited employee liability waiver with a role for OSHA, signaling potential movement toward new negotiations after President Donald Trump called on Republicans to accept a higher price tag for a consensus bill.

OSHA is revising its 2010 standards governing the use of cranes and derricks to add a host of exemptions for railroad work, reflecting both a 2014 settlement with the railroad industry and recent rulemakings by the Federal Railroad Administration (FRA) that the agency says preempted its authority in many areas.

California OSHA (Cal/OSHA) has recently fined more than a dozen companies a total of over $500,000 for allegedly failing to protect workers from COVID-19, with the bulk being levied on a frozen food manufacturer and the temporary employment firm it uses at more than $200,000 each.

OSHA has issued what appears to be its first citation to an employer for failing to protect workers from COVID-19 infections under the OSH Act’s general duty clause, a provision that attorneys have predicted will be the agency’s main authority for enforcing its array of sector-specific virus guidances during the pandemic.

The Senate has rejected Republicans’ “skinny” COVID-19 relief bill along party lines with Democrats decrying an employer liability waiver against OSHA enforcement as one of many “poison pills” that doomed the proposal, casting doubt on whether Congress will be able to approve any further virus-related relief bill this year.

The pro-regulatory group Public Citizen is suing the Department of Labor (DOL) seeking release of records from the development of OSHA’s enforcement memo that promised not to take legal action against meat and poultry plants that make “good-faith” efforts to comply with federal COVID-19 workplace safety guidance.

Several states are starting to use the threat of enforcement to implement non-binding COVID-19 workplace safety measures including guidance documents issued by OSHA and the Centers for Disease Control and Prevention (CDC), says an attorney who sees the efforts as a move by the states to enforcing voluntary safety steps.

California lawmakers have approved a controversial labor-backed bill to create an extensive list of notices that employers would have to provide to employees and others if a worker is exposed to COVID-19 and would authorize the state’s OSHA (Cal/OSHA) to shut down facilities if they are an “imminent hazard” to workers due to the virus.

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