HPSS Construction Law News
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OSHA Withdraws COVID-19 Vaccination Mandate for Employers |
On January 25, 2022, the Occupational Safety and Health Administration (OSHA) announced that it is withdrawing its COVID-19 vaccination and testing Emergency Temporary Standard (ETS), which OSHA originally issued on November 5, 2022 and required employers with more than 100 employees to develop, implement, and enforce a mandatory COVID-19 vaccination or testing policy. The withdrawal will be effective on January 26, 2022.
OSHA’s withdrawal of the ETS comes after the U.S. Supreme Court stayed the ETS on January 13, 2022, finding that the challengers to the ETS were likely to prevail on their claims.
Although OSHA is withdrawing the ETS as an enforceable temporary standard, it is keeping the ETS provisions in place to serve as a notice of proposed rulemaking for a permanent COVID-19 Healthcare Standard.
Even with the COVID-19 ETS withdrawn, OSHA will be able to use its enforcement of the General Duty Clause to address workplace responses to COVID-19, which requires employers to provide their employees with a safe and healthy workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.
OSHA’s full announcement on its withdrawal of the COVID-19 ETS is available here.
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OSHA'S Penalty Amounts Increase for 2021
On November 3, 2015, then President Obama signed the Bipartisan Budget Act of 2015 (Act) into law. The Act was a two-year deal that was negotiated quickly to avoid a default on our nation's debt. Budgets often contain obscure changes to laws that are not easily identified. However, this Act was unique because it contained a provision that allowed the Occupational Safety and Health Administration (OSHA) to increase its maximum penalties for the first time in 25 years. Importantly, the Act does allow OSHA to annually adjust the maximum penalty amounts to reflect inflation, similar to other government agencies.
For 2022, penalties for an other-than-serious violation, a serious violation, and a failure-to-abate violation increased to $14,502, which represents a $849.00 increase over these same penalties in 2021. Willful and repeat violations now have a maximum penalty amount of $145,027 per violation, which represents an increase of $8,495.00 over last year's maximum penalty amount for willful or repeat violations.
In light of this increase in OSHA penalty amounts, and the fact that the Biden administration promises increased enforcement efforts, it is a good time to revisit your company safety program to make sure you are taking those steps necessary to defeat a citation based on the unforeseeable employee misconduct defense. To establish the affirmative defense of unforeseeable employee misconduct, an employer must show that it (1) established work rules designed to prevent the violative conditions from occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and (4) effectively enforced the rules when violations were discovered.
While most construction contractors have work rules, provide training, inspect their jobsites, and discipline employees who violate safety rules, it is absolutely imperative that documents are maintained that provide evidence of the same, and that the company's safety program, especially its disciplinary component, is effective such that violations are truly unforeseeable. Even verbal reprimands should be documented. All documents which would support the affirmative defense of unforeseeable employee misconduct should be well organized and stored in a safe place for easy access in the event the company is cited for an OSHA violation.
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Be Sure to Comply with OSHA's Form 300A Posting Requirement
Between February 1 and April 30, covered employers must post OSHA's Form 300A in a place easily accessible to employees, such as the break room. Form 300A summarizes the total number of work-related injuries and illnesses that occurred during the prior calendar year and entered into OSHA Form 300, which logs such injuries and illnesses. Whereas Form 300 should include details, such as the nature of the injury and where it occurred, Form 300A only lists information such as the total number of deaths, cases involving days away from work, and total number of days away from work for all recordable cases. Recordable cases are those that involve a death; days away from work; restricted work or transfer to another job; medical treatment beyond first aid; loss of consciousness; diagnosis of a significant injury or illness by a healthcare professional; or a needlestick or sharps injury involving contamination by another person's blood or other potentially infectious materials.
Construction employers must post Form 300A even if no recordable injuries occurred during the prior year, with zeroes entered in the spaces.
For the fourth consecutive year, employers also need to concern themselves with OSHA's Improve Tracking of Workplace Injuries and Illnesses regulation, often commonly referred to as OSHA electronic recordkeeping regulation. Construction employers with 20 to 249 employees are subject to the rule and must electronically submit their 2021 300A Annual Summary to OSHA no later than March 2, 2022.
Under current rules, injury and illness records must be maintained at the worksite for at least five years. Also, copies of the records must be provided to past and current employees, or their representatives, upon request.
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