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Workplace Vaccination Programs and Updated Inspection Guidelines

by Navigant Law Group | Business, Employer Issues

New updates from the CDC and OSHA.

The Center for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA) have each recently issued updated guidance related to the ongoing COVID-19 pandemic.

Workplace Vaccination Programs

The Center for Disease Control recently updated its recommendations on Workplace Vaccination Programs.  The full CDC page can be found here, but below is a summary of some of the items the CDC recommends for the workplace:

  • Offer flexible, non-punitive sick leave options (e.g., paid sick leave) for employees with signs and symptoms after vaccination.
  • Consider staggering employee vaccination to avoid worker shortages due to vaccine side effects. For employees who receive a 2-dose vaccine, staggering may be more important for the second dose, after which side effects are more frequent.
  • After employees are fully vaccinated, they may be able to start doing some things they had stopped doing because of the pandemic. However, in work settings, even after employees receive a COVID-19 vaccine, they may still need to take steps to protect themselves and others in many situations. Employers should continue to follow the Guidance for Businesses and Employers Responding to COVID-19. This includes wearing well-fitting masks, making sure employees are staying at least 6 feet (about 2 arm lengths) apart from each other, avoiding crowds and poorly ventilated spaces, and washing hands often. The more contact the employees have with one another the more likely they are to be exposed to COVID-19. If other workplace health and safety measures, such as engineering controls (e.g., barrier protections), were installed, they need to remain in place.

 

OSHA Audit Procedures

Not to be outdone, the Occupational Safety and Health Administration (OSHA) has provided new instructions and guidance to Area Offices and Compliance Safety and Health Officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports.

Pursuant to the March 12, 2021, National Emphasis Program (NEP) for COVID-19, DIR 2021-01 (CPL-03), OSHA will prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19.  NEPs are temporary programs that focus OSHA’s resources on particular hazards and designated high-hazard industries. This NEP advises that OSHA will use targeted inspections, outreach, and compliance assistance to identify and reduce or eliminate COVID-19 exposures in the workplace. In addition, this NEP will include the added focus of ensuring that workers are protected from retaliation.

OSHA has also issued an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) to prioritize the use of on-site workplace inspections where practical, or a combination of on-site and remote methods.

Since the start of the pandemic, OSHA has handled most enforcement work remotely, without in-person inspections. Under the NEP, more inspections will involve on-site visits.

The following summarizes OSHA’s updated strategy:

  • OSHA will perform on-site workplace inspections where practical.
  • OSHA will at times use phone and video conferencing, in lieu of face-to-face employee interviews, to reduce potential exposures to CSHOs. In instances where it is necessary and safe to do so, in-person interviews shall be conducted.
  • OSHA will also minimize in-person meetings with employers and encourage employers to provide documents and other data electronically to CSHOs.
  • In cases where on-site inspections cannot safely be performed (e.g., if the only available CSHO has reported a medical contraindication), the AD will approve remote-only inspections that may be conducted safely.

OSHA has also provided a graphic showing important dates of the updated NEP.

The updated NEP reflects the concerns raised in the February 22, 2021 Office of Inspector General’s report on OSHA activity during the pandemic  This report criticized OSHA’s handling of complaints during the pandemic, saying:

“Since the start of the pandemic, OSHA has received a sudden influx of complaints, and as a means of reducing person-to-person contact, has reduced the number of its inspections, particularly onsite inspections. Compared to a similar period in 2019, OSHA received 15 percent more complaints in 2020, but performed 50 percent fewer inspections. As a result, there is an increased risk that OSHA is not providing the level of protection that workers need at various job sites. During the pandemic, OSHA issued 295 violations for 176 COVID-19 related inspections, while 1,679 violations for 756 COVID-19 related inspections were issued under State Plans.”

According to the American Health Law Association, as of January 14, 2021, OSHA had issued hundreds of citations resulting from COVID-19 inspections, with total initial penalties of $4,034,288. As of March 14, 2021, OSHA had received a total of 16,192 COVID-19 related health and safety complaints and referrals at the federal level, and opened 1,816 inspections. The majority of these inspections were triggered by employee complaints. Separately, OSHA has received 5,035 whistleblower complaints related to COVID-19.

American Rescue Plan Act (ARPA)

The new American Rescue Plan Act (ARPA) will also assist OSHA’s ability to increasing its on-site inspection abilities.  The ARPA provides up to $200 million in funds for the U.S. Department of Labor, specifically stating “not less than $100,000,000 shall be for the Occupational Safety and Health Administration”. Of the $100,000,000 “not less than $5,000,000 shall be for enforcement activities related to COVID–19 at high-risk workplaces including health care, meat and poultry processing facilities, agricultural workplaces and correctional facilities.” An additional $12,500,000 is earmarked for the Office of Inspector General (The U.S. Department of Labor (DOL) department that conducts audits to review the effectiveness of all DOL programs and operations) with the remaining money not specifically allocated and left to the discretion of the DOL for its use.

Should you have any questions about the Center for Disease Control’s updated guidance, Occupational Safety and Health Administration’s workplace audits, the updated American Rescue Plan Act of 2021, how the items highlighted in this blog affect your business or you would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

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