Employers should ‘have a plan’ for upcoming Covid-19 inspections

The hundreds of thousands of employers covered by OSHA’s Covid-19 vaccination or testing mandate are expected to be ready for inspections starting January 10, lawyers and consultants warn.

While the Occupational Safety and Health Administration will not require employers to vaccinate or test their workers at least once a week until February 9, OSHA may begin citing employers earlier for other violations. of the Covid-19 emergency temporary standard.

“If you don’t do anything to comply, you could be the subject of a citation,” said former OSHA official Richard Fairfax, who retired in 2014 as deputy administrator of the career department of the agency and is now a consultant to the National Security Council.

The Biden administration’s Covid-19 standard requires most employers with 100 or more workers to implement a vaccination or testing warrant. The standard, intended to stem the thousands of Covid infections sweeping across the country, was due to go into effect on December 6, but a Federal Court ruling prevented OSHA from enforcing the rule. As of Monday, more than 51 million cases of Covid-19 were reported, according to Bloomberg data.

OSHA has said it will not name employers it says are trying in good faith to comply with the regulations on time.

The agency’s other Covid-19 emergency standard covering only the healthcare sector is expected to expire on Tuesday, six months after its publication. OSHA has not said whether it will seek to extend the emergency standard or issue a permanent rule. The health care standard requires hospitals, nursing homes, and some medical clinics to establish prevention programs, but it does not require workers to be vaccinated or tested.

Employers prepare

Attorney Laura Lawless, a partner of Squire Patton Boggs in Phoenix, said she would expect OSHA inspectors in January to include reviews of large employers’ Covid-19 compliance efforts in the framework of any inspection.

“At the very least, know who is vaccinated. Have a plan in place ready to be issued, ”advised attorney George Ingham, partner of Hogan Lovells in Tysons, Va.

On December 17, the United States Court of Appeals for the Sixth Circuit lifted a stay blocking the rule, allowing OSHA to begin enforcing it. Shortly after the court’s announcement, OSHA said it would not release citations until Jan.10 and require compliance with the vaccination or testing mandate until Feb.9.

States and business groups have already asked the United States Supreme Court to re-stop the standard, but it is likely that they will have to wait until January before a decision is made on the requests.

Most large employers already have programs in place that meet or exceed some of the standard’s provisions, such as employee immunization tracking, said Deborah Roy, former president of the American Society of Safety Professionals and consultant in security.

Employers should continue to develop the programs so that they can meet OSHA requirements in time for the next deadlines, she said.

Many employers also choose to have Covid-19 testing programs and do not take OSHA’s option of requiring workers to pay for testing, Roy said.

Those with state plans

OSHA has issued compliance assistance for employers, including model plans for testing and vaccinations. The American Industrial Hygiene Association and others have provided free advice under the name of Committing to Community, Awareness, Accountability, and Fairness.

Ingham said employers in states where governments have banned employer vaccination mandates must still prepare for federal standard implementation deadlines, as OSHA believes its requirements take precedence over local and state requirements. .

In states covered by national worker safety agencies, employers should be careful with their state’s implementation timelines, which may be different from federal OSHA, Lawless said.

The Temporary Emergency Standard requires employers to develop, implement and enforce a mandatory Covid-19 vaccination policy or a policy requiring employees to choose either to be vaccinated or to undergo Covid-testing. 19 regulars and wearing a face cover at work.

In addition to requiring employers to give workers paid time off to get vaccinated, the standard also requires paid sick leave for them to recover from any side effects.

Employers who fail to enforce OSHA’s most recent rule could face a fine of up to $ 13,653 for each serious violation. A willful violation, essentially an employer willfully neglecting the mandate, could result in a fine of up to $ 136,532.

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