A new presidential administration usually generates a host of changes in the executive branch of government, especially when a president takes office from a different party than the previous one. The Biden administration is no different and has already had an impact on the Department of Labor (DOL) and its Occupational Health and Safety Administration (OSHA). Employers should become familiar with how these new policies may impact OHSA’s approach to administering its codes and standards.
New Secretary of Labor
Former Boston Mayor Marty Walsh was confirmed on March 22nd, 2021 by the Senate (68-29) as the new Secretary of Labor. Secretary Walsh’s appointment was supported by many organized labor groups, including the AFL-CIO. He has a long history working in the Boston area in the construction industry and as a member of building trades unions. It is expected that he will tilt OSHA toward a more worker-oriented perspective than seen under the Trump administration.
COVID Emphasis Program
President Biden issued an executive order on January 21, 2021 that directed OSHA to implement a COVID-19 National Emphasis Program (NEP) that subsequently was launched by the agency on March 12, 2021. The initiative focuses on virus prevention in the workplace, especially in so-called “high-risk environments”. According to OSHA, the program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure.
The order is remarkable too in that it instructs OSHA to consult with state and local government authorities having jurisdiction over public employees’ safety and health and to work also with public employee unions to improve virus protection for public-sector workers.
It also directed OSHA to review whether an Emergency Temporary Standard (ETS) should be developed to specifically address COVID-19 in the workplace and then report its findings to the White House no later than March 15, 2021. According to the DOL, a draft of the ETS has been provided to the president’s office but no further information regarding its status is available currently.
Many observers believe that an ETS, if adopted, will alter and expand the agency’s established guidance related to virus preventative measures and include some new directives regarding sick leave policies, employee vaccinations, and testing programs. Mandatory mask-wearing, hand-washing breaks, and social distancing are expected to be included in plans that will be company-specific.
Anti-Retaliation Attention
President Biden, in his original January 21, 2021 executive order, also emphasized that OSHA must prioritize enforcement against employers engaging in discriminatory actions against employees who report health and safety violations. Interestingly, the anti-retaliation rule had been approved during the final year of the Obama-Biden administration in 2016 and, although not revoked by the Trump administration, was not emphasized. A key feature prohibited the use of automatic blanket drug-testing following an accident or illness, stating that this type of testing is improper because it has been shown to discourage employees from properly reporting injuries.
Employers should prepare their companies for other potential changes, such as increases in OSHA’s inspection activity level caused by a possible doubling of the number of OSHA compliance officers. Suffice to say that most likely more changes will be implemented as the new administration moves further along in its first term, so employers are advised to stay informed as much as possible.
Worker Who Fell While Using Bucket as Step Stool Prevails on Labor Law Claim
A New York appellate court upheld a grant of summary judgment to a construction worker for his injuries from a fall while he used an upside-down bucket as a step stool.
Case: 85 Fee LLC, No. 152890/17, 02/25/2021, published.
Facts: employee allegedly suffered injuries while removing overhead ceiling wires at an apartment.
Employee said he could not find a ladder. He said his supervisor would climb atop a 5-gallon bucket to perform overhead tasks, so he decided to do the same. Employee was standing on a bucket when it suddenly tipped, causing him to fall.
Procedural history: employee filed a Labor Law action against multiple defendants, then moved for summary judgment under Section 240(1), which imposes absolute liability on property owners, general contractors or their agents for failing to provide adequate safety devices to protect workers from the risk of falls.
New York County Supreme Court Justice Robert David Kalish granted summary judgment for the employee
Analysis: The Appellate Division’s 1st Department said that the record evidence of the employees accident established a violation of Section 240(1).
The court said the defendants failed to raise a triable issue as to whether the employees own conduct was the sole proximate cause of his fall, given the lack of evidence of any standing order not to use a bucket to complete the project, especially after the employee witnessed his supervisor doing so.
OSHA Releases Top Ten Citations List
OSHA recently released the Top 10 most cited violations for its fiscal year ending in 2020* and it includes most of the usual suspects. In fact, it is identical to the 2019 list except some of them have changed places. For example, Ladders (1926.1053) rose from number six to number five and Respiratory Protection (1910.134) climbed from number five to number three. One notable fact is that Fall Protection-General Requirements (1926.501) remained at number one as it has for the last tenconsecutive years.
The Top 10 for 2020 are listed below:
- Fall Protection – General Requirements (1926.501): 5,424 violations
- Hazard Communication (1910.1200): 3,199
- Respiratory Protection (1910.134): 2,649
- Scaffolding (1926.451): 2,538
- Ladders (1926.1053): 2,129
- Lockout/Tagout (1910.147): 2,065
- Powered Industrial Trucks (1910.178): 1,932
- Fall Protection – Training Requirements (1926.503): 1,621
- Personal Protective and Life Saving Equipment – Eye and Face Protection (1926.102): 1,369
- Machine Guarding (1910.212): 1,313
Fall Protection continues to be a major area of concern because it is a chronic problem and its 5,424 citations for the fiscal year were almost twice as many as the second one on the list, Hazard Communication. A former OSHA official admits that thiscategory usually has large numbers of cited violations because it is difficult at times for employers to stay up to date with new chemicals being introduced to their workplaces, especially in larger companies.
* The OSHA fiscal year begins October 1 and ends September 30th of the following year.
Please direct any questions or concerns to:
The Safety Division at Hamond Safety Management
Anthony Vacchio, [email protected]