L E G A L LY S P E A K I N G
OSHA—The Year in Review by Michael Metz-Topodas, Cohen Seglias Starting 2021 under a new administration promised significant changes to Occupational Safety and Health Administration (OSHA) regulations and enforcement, especially with the agency confronting a deadly and omnipresent virus. And the year unfolded as expected—at least for new safety requirements. Despite a focus on COVID-19, OSHA implemented several other regulatory changes that impacted the construction industry, and these recent initiatives may provide insight on future policy and enforcement in several key construction workplace areas.
The Emergency Temporary Standard Vaccine Mandate Commentators have spilled vast amounts of ink about OSHA’s vaccine mandate in the emergency temporary standard issued in November 2021 (the ETS). Multiple injunction actions and appeals challenged and defended this rule, culminating in a final petition on the ETS’s validity to the Supreme Court. With oral argument completed on January 7,
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2022, employers can expect clarification on the ETS shortly. The Court expressed skepticism about whether OSHA acted within the proper scope of its authority in issuing the ETS, but recognized that COVID-19’s unprecedented widespread and devastating effects could warrant workplace safety regulation. The Court’s questions and comments suggest it may end up staying the ETS, but not foreclosing other, perhaps narrower, emergency standards or final rules aimed at protecting workers from COVID-19 exposure. Nonetheless, during the time the Court allows the ETS to remain in effect, all employers with one hundred or more employees must comply with the rule, including those working on federal construction projects, despite the Federal Acquisition Regulation vaccine mandate remaining stayed.
A Small Change in COVID-19 Reporting with Major Implications The ETS also contained a minor,
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almost imperceptible, change in workplace injury and illness reporting requirements. Previously, under a Trump administration regulation, employers needed to record and report an employer’s COVID-19 hospitalization or death as a workplace illness if the employer could reasonably establish that the infection more than likely occurred from work-related activity. The prior policy’s “more than likely standard” acknowledged that employers lacked resources to determine whether an infection occurred at work, other than in very clear circumstances. Now, however, employers covered under the ETS must report any employer COVID-19 hospitalization or death using the same “work-related” criteria used for any other injury or illness: whether an “event or exposure in the work environment either caused or contributed” to the infection or if COVID-19 exposure “likely occurred in the work environment.” In making this determination, an employer must consider these factors: • the type, extent, and duration of the
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