Outline

03m 01s Introduction to Courtney Malveaux

03m 49s What is OSHA and what is their purpose?

06m 38s Does the State OSHA organizations have a separate enforcing body from the federal OSHA and could an employer in these States be subject to both?

10m 11s Courtney Malveaux’s experience over the years with OSHA 

11m 51s The evolution of OSHA in addressing the pandemic

16m 46s What steps did OSHA take to address the concern of essential workers who continue to work?

21m 13s What is the standard that the health board creates?

26m 59s Who is involved in putting the standard together?

29m 24s Does OSHA provide guidance on what kind of equipment is needed in the workplace?

31m 02s Misunderstandings about personal protective equipment

34m 40s Courtney Malveaux share interesting OSHA or pandemic related stories 

43m 14s Does OSHA provide guidance to employers on how to handle returning employees to the workplace? 

47m 10s Are there any claims by the employees that the employer has not met the standard of care in the workplace?

49m 45s What are the enforcement mechanisms under OSHA and how OSHA does go about enforcing violations?

53m 56s What protections are there under OSHA for employees who report unsafe working conditions?

59m 21s What are the top priorities that an employer should pay attention to in order to stay abreast of OSHA regulations?

 1hr 05m 29s Courtney Malveaux parting words 

1hr 10m 45s How to find Today’s Podcast 

Transcript

Belinda: Hello, this is today’s workplace and I’m Belinda Reed Shannon

Barbara: And I’m Barbara Johnson. Wasn’t that a wonderful interview with Courtney Malveaux? I mean, that was so interesting. I mean, we all have heard about the occupational safety and health agency, but how often do we deal with it on a day to day basis? And Courtney did a great job I think of just helping us understand what it is and how they do what they do.

Belinda: And I think he also gave us a great practical perspective on dealing with the agency and working in more of a partnership, as opposed to working with the agency as if they are some kind of enforcement agency that’s strictly out to get them. That didn’t seem to be the case, according to Courtney’s information that he shared. And I think a lot of employers are happy to hear that.

Barbara: And one of my big takeaways is with OSHA. It’s not so much about the money. It really is about demonstrating that you care about the safety of workers, right? And so that, that came across as really being paramount and what employers should be thinking about.

Belinda: And I think that we’re going to see more of that. And I think that that’s going to be a trend for the future that employers are going to have to approach their obligations in the workplace, particularly as it relates to safety in a more humanity driven focus, as opposed to a risk focus.

Barbara: Yeah, and I mean, just even thinking about the return to work issues and OSHA, and I think this will be a theme that we’ll see with many of our guests is at the end of the day, you have to look at situations on a case by case basis. And especially during the time of pandemic, have flexibility. I understand why people aren’t wanting to return to the workplace as opposed to automatically drawing conclusions.

Belinda: Yeah. Well, that’s what makes our discussions of these topics on Today’s Workplace so valuable. All right. Welcome to Today’s Workplace. Some employers are very familiar with OSHA and well versed in compliance with OSHA, especially if you’re in manufacturing or construction industries, where historically there are significant issues around employee safety, but for many employers with white-collar employees, OSHA has been an afterthought. Now in the era of COVID-19, this agency has increased significance and has given us some information that is not typically on the forefront of our thinking. And it has taken on tremendous importance.

Barbara: We are very fortunate today to have an expert in OSHA. Courtney Malveaux. Courtney is a principal in the Richmond Virginia office of Jackson Lewis, and he co-heads the firm’s workplace safety and health practice group and the firm’s construction industry group. His practice focuses on representing employers who have been cited by the occupational safety and health administration and other regulatory agencies, oftentimes following catastrophic incidents. So welcome to Today’s Workplace. We’re very happy to have you, Courtney.

Courtney: Thanks, Barbara. It’s a real pleasure to be here.

Barbara: Great. So for our listeners who are not very familiar with OSHA, let’s start by having you explain what this agency is and what their purpose is.

Courtney: Sure. So in 1971, Congress passed the OSHA act, the occupational safety and health act. And so I think I was, we’re just talking about schoolhouse rock. I think I was watching schoolhouse rock more frequently at that time when this act was passed, maybe I was watching Sesame Street. I don’t know, but I’m just a little bit older than the act itself. So at the time, it was the Vietnam war was occurring and actually there were more fatalities happening domestically in the workplace than there were, even overseas and that was a patchwork of state laws that were addressing workplace safety and some were stronger than others and some had enforcement regimes that were stronger than others. And so Congress decided that it needed to have some kind of minimal standards that would address workplace safety and health. And so that’s the Genesis of OSHA. It’s interesting that OSHA, the Congress set it up so that you had a dual regime of enforcement and so that makes things a little bit more complicated, but you had the occupational safety and health administration that was enacted, but also Congress said that if States still want it to have some leeway in operating their own safety and health regime, they could continue to do so. And so there’s a granting program under OSHA for States to establish what are called state plans. And so roughly half the States have taken OSHA up on it and they provide matching funds at varying levels, and then they operate their own OSHA program. And so you mentioned I’m in Virginia and Virginia is one of the States that has its own state plan. And so we have votes for Virginia, occupational safety and health, and there are 25 other States that do the same and sometimes they cover private employers, sometimes public, sometimes both, usually both and the only requirement for those States is that they have a program that’s at least as effective as federal OSHA’s and then if they do that, then they can also have their own state-specific requirements as well. So as you know, and in the law that downside who’s it who has jurisdiction and who doesn’t, that has a whole lot to do with how the laws implemented.

Belinda: So do those State OSHA organizations, do they have a separate and apart enforcing body from the federal OSHA and could an employer in these States be subject to both?

Courtney: Generally? No, you’re subjected to one or the other and so OSHA kept jurisdiction over federal workplaces. So for example, federal enclaves or military basis, or the United States postal service, and usually the employers, even the contractors who come onto these work sites, they all fall under federal OSHA. What’s called federal OSHA jurisdiction, even in a state plan state? So if there’s work being done or interestingly, the cabins of airplanes, just the cabin.

Belinda: Just the cabin.

Courtney: So for example, if you had an employer sending, working as contractors at a military base in Norfolk, then they would fall—then federal OSHA has an office in that area, and then they send their inspectors and they enforce federal OSHA law, but for nearly all other private employers and certainly for all state and local employers in the state plan States like mine, then they fall under WIOA (Workforce Innovation and Opportunity Act) jurisdiction. And so it could be Cal OSHA for California, Oregon, you name it, whatever state they’re in, they have their own regime. So just to give you an idea what it’s like, so OSHA has its own standards and I actually I have these with me all the time. This is the general industry standard for OSHA, and there are other books for, for construction.

Belinda: Is that your Bible Courtney? 

Courtney: I don’t sleep with this next to me, but I certainly have it by my side all day and when my assistant brings into the new regulations, I literally get air. I jumped out of excitement. OSHA is a long dark hole, and you don’t want to even take one step going down there, but yeah, that’s so you have these standards now, in the like mine, the state plans, they have their own and I said they have to have a plan that’s at least as effective as federal OSHA. And there’s a huge, huge debate over what effective means and if you really really want to geek out like me, I actually wrote a whole review article on this subject that I think, I don’t think my own mother read it, but there are state-specific standards and if you read books like these from federal, then the States can add their own standards. And this is my state standard book for Virginia. It’s a lot thinner and not as heavy, you can’t–but that gives you some idea that generally, 95 to 99% of the rules still apply in the States that apply to federal OSHA. But I will tell you, California is a very different animal. It has— in like a lot of other areas, California–

Belinda: I was going to say, that’s no surprise, right?

Courtney: Yeah. I’m staying on the East coast, when you need someone on the left coast, I know people that call, but I’m trying not to go down that rabbit hole, but yeah, it can get kind of thick

Barbara: Courtney, what has been your experience over the years, either with OSHA or state-related agencies? I gave a very brief bio at the beginning but were you actually working for one of the OSHA’s or OSHA related type entities

Courtney: Guilty as charged. So until about seven or eight years ago, times kind of flying. I served as our state labor commissioner. And so in the state plan states, the state labor commissioner or the labor secretary will oversee their OSHA program in their state. And so I had enforcement authority over OSHA, as well as other labor and employment laws in Virginia and so, the OSHA component, our vote component, Virginia was the largest component of the agency by far.

Belinda: That’s great. So talk to us about, you know, one of the things I mentioned is that OSHA has suddenly come to the forefront for most employers now in the age of the pandemic. And can you talk to us a little bit about that evolution, the evolution of OSHA in addressing the pandemic in, you know, what happened at first, how they responded and now how they’re engaged with employers?

Courtney: Sure and I think a lot of the folks who will be listening will either be employers, especially in an employment or labor context, and also people who were in human resources or managerial, and as many of you know, people in those fields, they either, when COVID hit, they either got super busy or super slow. And I gotta tell ya, people didn’t even know who we were and this phone is ringing so fast and the emails come in faster than I can reply and right now I’ve got stacks of files over here, of folks who need advice and dealing with COVID in the workplace. So for whatever reason, I don’t know, OSHA lawyers became cool, but they are certainly in high demand. So it added huge layers of complexity to OSHA practice, to the questions that come up and the anxiety of COVID in the workplace. And so we are grappling with the guidance that’s coming out from the centers for disease control and prevention, the CDC, is really driving the bus for everything else. And so, when CDC came out with guidance that OSHA would follow, so OSHA has pretty much been taken and the CDC is leading its guidance documents. Now I remember, and I sit on a board it’s called the, our safety and health codes board and so I mentioned that we enact the standards in our state, the OSHA regulations in my state. I am a voluntary member of that board that enacts those standards. So it’s a neat opportunity to kind of help shape policy in addition to practising law. And I remember sitting there next to one of the last meetings I went to before COVID was in full force. I was sitting next to a buddy of mine and he said, hey, what are we going to do about reporting or recording COVID cases to OSHA. And I said, recording, who’s thinking about recording. We need to have our eye on the ball. This is about life and death and this is a—at the time it wasn’t yet a pandemic, but it was looking like it was become one and I said we’ve got to be on top of our safety and health game here. We can’t worry about the paperwork so much. Well, it turns out, it is still as of the recording of this podcast in August, a huge, confusing and burning issue about whether and how, and when to record and report COVID cases in our record, keeping and record and reporting them to OSHA. And so, I will tell you, one unfortunate by-product is that you know, I’ve been an enforcement role and I’m now in a rulemaking role and also in an advising council role, too often, we take our eye off the ball on what is important. And the most important thing about this is human life and human safety. And that’s what we hold in our hands as practitioners, as managers. And if we focus too much on these skirmishes over the rules, oftentimes we lose sight of what’s most important. And so, while I’m helping employers to manage their response and compliance with the quickly changing rules and the quickly changing science, I’m continually encouraging them, take a breath, do your whoosahs, do your ohms, do whatever you gotta do to settle down and focus on what’s most important because it’s all about trying to keep people healthy and safe while keeping life going and so that’s been what– maybe (intelligible 15:54) the lawyer side of me, more the human side of me says, yes, we’ve got to comply with the rules, we have to understand them, and we don’t want to land a legal trouble, but also, most employers, well, the employers I work with are very concerned about their employee’s safety and so maintaining that focus for me has been one of the biggest challenges.

Belinda: So more of like a lead with humanity focus. 

Courtney: Absolutely. Absolutely. You can, it may sound unheard of sometimes humanity gets lost in the practice of law. I don’t know, but yeah, maintaining the focus on what’s most important. I’m very determined to keep that in front of us at all times.

Barbara: you know, early on in the pandemic, Courtney, there were reports of unsafe workplaces, everywhere, you know, the meatpacking industry. I know there were a lot of– there was a lot of concern about workers who were essential workers and continuing to work. And so what steps did OSHA take to address these concerns?

Courtney: So you’re right. And so there are certain workplaces that they got hit hard and sometimes we get to be behind the closed doors and we get to see the situations for what they are and sometimes the press is not entirely accurate or maybe kind of focuses on certain stories, but not others. And even policymakers have a tendency to focus on some and not others and not always have their eye on the ball and where the real problems are. Now, that’s not to say that there weren’t serious problems. There were certainly have been. And so, yes, you’re right in meat, packing and seafood and poultry processing, those types of facilities had real problems because you had people who had to work in close proximity and that, of course, is a risk factor, a big one and I think a lot of– I actually got to work closely with a member of the board who is exactly in that industry and I work with employers, one of whom had a number of COVID cases pop up and they really spread quickly, especially among the immigrant pop. They should be workers who work there but you find that they’re not, I think if you just listened to the press reports, you think, oh, they don’t care. The human life has expandable. I don’t see that as the ethos. I think there are like the rest of us, where they got caught with a difficult situation and it was not anticipated. It’s the novel coronavirus by definition, it was new, it was unforeseen. And so, and I can tell you from those stories, and sometimes, unfortunately, they range from sad, the tragic, that you really have some victories and you have folks who said, you know what, this happened, we’re going to address this and we’re going to do things the right way. And the good part, one of the things I love most about my work is that I can be part of those success stories when they start out in a bad place, but then they adopt new business practices and do safety practices and embrace that and run with it. And then you see, and they can really turn these situations around. Many of them have. And so my board, the same health codes board was considering, there were advocates who were pushing for a specific standard to go after exactly these industries, the seafood, meat, poultry processing. And so it came back to the governor, the administration, and then the governor’s directive was no, I’d like to have a standard that addresses all industries and so we came back and we came up with a standard that wasn’t as punitive and something that could have broader application and broader impact. And to that extent, I thought that was a good decision. And also it embraced the reality that many of the players in those industries, at least in Virginia, but elsewhere too, we’re doing the right thing and moving things in the right direction. And we went from ideas that were really going to crack down to the point of breaking backs, to one that in that embraced the good practices they’re engaging in and, and encouraging that along. And I thought that was a good step.

Belinda: Yeah. Could you be a little bit more specific then about when you talk about a standard, what generally is in that standard of what did your board create in terms of, I mean, we don’t need the unabridged version. I was just–

Barbara: we don’t need to Tom version though. 

Belinda: Right. I was just thinking in terms of what, what are some of like the top in more significant, I guess, categories that you needed to address 

Courtney: Right.

Belinda: In terms of standards. 

Courtney: Okay. So, yeah, cause it’s a 47-page monstrosity and talk about long dark holes. You don’t want to start down that one, but I’ll give you the reader’s digest version. So I mentioned that in Virginia, we have some junior specific standards are about a couple dozen of them and we just passed a new one and we pass it three weeks ago. And I gotta tell you, I’ve been advising so much on it. It feels like three years. I can’t believe it’s only been three weeks, but it’s a specific standard on COVID. So just by way of background, I mentioned that there’s federal OSHA, and then there is half the States have their own state OSHA program and they can enact state-specific standards if they want to. Now generally, what’s happened under OSHA and even the other state plans is that they’ve said, well, if you follow the CDC guidance, you’re good. And so, you have the standards like these and you have several of them. Okay. General industry construction, marathon, you name it. They’re whole bunch of standards. These standards are, many of them are like 40 years old. COVID was not even an idea if we thought it was the common cold. And so stuff like coronavirus is not in here. And it would take way too long to get it in there to have a standard. But there is, what’s called a general duty clause. And so it’s a catchall. If where something doesn’t fit, you just save a look, okay, and it’s in the OSHA act. It says that employers are required to provide employment and a place of employment that is free of recognized hazards to their employees. That’s what it says. And so if you have something that the standard, you know, people drafted standard never dreamed of 40 years ago, under certain circumstances, you can use the general duty clause. Now I’m one of, and I have my biases and I’ll just address them up front, but one of them and others who can disagree, I think frankly, that the general duty clause can and does apply legally to COVID. And I think that we have some industry standards being put into place by CDC, guidance by OSHA, and that are being embraced by industry players and associations such that we’re creating standards and dealing with COVID that, and you could actually, I think OSHA could successfully site a company for failing to follow CDC guidance. I really do. That said our board passed a standard specifically on COVID in Virginia by way of disclosure, I wasn’t a fan of the standard. I was a minority voice on the board but it does, there’s a 47-page standard that replaces any general duty obligations and says, this is the standard for COVID. And so it has a number of provisions and it requires employers to put together infectious disease, preparedness and response plans. It has certain training requirements. There are required hazard assessments for employees, and then there are other additional protections. If there’s a requirement to report all COVID cases to the state department of health, there’s what I call the hotspot rule, which is requiring employers to report to Virginia occupational safety and health If they have three or more cases in a 14-day window, it has, even in the anti-retaliation provisions in Virginia, there are additional requirements under this standard. So employees now are able not only to blow the whistle to OSHA or state agencies or to report to their concerns to the employer or discussing with coworkers, they can also go to the news media or to social media with complaints and so I’m holding a lot of employers hands; again, back to the ohms, the whoosahs. It’s going to be okay. We, unfortunately, have some situations where employees either unintentionally or intentionally report things or things are reported in the press that are accurate or not. And it can put an employer in a very difficult position if inaccurate information about them as being put out there. So, and there, there are a lot of other provisions, but I’m really trying to focus Virginia employers on complying with the standard, but not getting so lost in the weeds of this, that they’re forgetting the human being like I said before.

Belinda: and who usually is involved in putting the standard together? Is it a coalition of government plus private and public employers? Or does it just come from one place, one committee?

Courtney: Yeah, the initial idea, which was not pushed was a coalition of several interest groups, employees, and poultry, meat processing, and seafood industries. Then they brought (inaudible 27:33) emergency standard just to deal with that. And then the agency consulted with our administration and the administration and got marching orders saying, let’s not go that route. Let’s do something with broader applications. So really the agency put pen to paper in draft standard. And then I and others attached a number of amendments to it. If you really want to know how the sausage is made, at least from my standpoint, I might be the only– I think I want to maybe four or five people in the state to do this, but I actually pulled out this 47th-page reg at like, I don’t know, 10 or 11 at night and just went to work on it. And I went till 2:00 AM and just drafting amendments by what I, what I thought made sense policy-wise and for employers. And honestly, that’s how a lot of the amendments are in there is because there was a small handful of folks like me who jumped in there suggested amendments to the agency and some of them are in there and some of them got thrown in the trashy, but that’s, as far as I can tell, that’s how it really happened. I really hope that others who go this route, I know Oregon’s pushing forward with one and other States or expect them to do the same. I really hope that if there are listeners on this, that they reach out to me, other members of the board and ask us where the brick walls are, because there are landmines all over the place and drafting a standard like this, and we don’t hold all the wisdom, but I can tell you and folks who disagree with me will agree at least on where a lot of the landmines are and how we can help to address a lot of the questions that, and stress that comes from the new standard.

Barbara: You know at the beginning of the pandemic in this country, there was a lot of concern about personal protective equipment and whether who needed the personal protective equipment and what it should be. Does OSHA provide guidance, respect to who needs, what kind of equipment in the workplace?

Courtney: Yes, In fact, there’s a whole section on a personal—- personal protective equipment is addressed throughout the standards in there. There are standards specific to that, and also standard on respirators. And so, yes, there are specific standards for that now in the Coronavirus context, none of that is in there really. I mean, you could argue that some of the standards kind of apply, but not so much, not really and so really, if anything, maybe some of the sanitation and other standards would apply better, but yes, there are personal protective equipment standards, but in this context for COVID, you know, we had to put in our Virginia standard, look, you have to look at what personal protective equipment is necessary to guard your employees that are not in this standard. We had to explicitly say that because it was never dreamed of when they came up with these. I will tell you though, that there’s a big misunderstanding among a lot of folks. So the masks, the face coverings I’ve got mine here, you have yours with you?

Belinda: I got my mask, don’t leave home without it

Barbara: All the time, don’t leave home without it

Courtney: Well, I even have a handset. I’m a safety geek. I really am. So people think that these masks are personal protective equipment, and they’re not personal protective equipment. In fact, it’s intended to protect you personally, right? By wearing this, at least the published science will not say that this will protect me from inhaling from others, but there’s a lot of unpublished science that’s really been embraced by CDC saying, yeah, but it looks like in groups that it is preventing these spread out to others, and that’s a good thing. And so if everybody wears their face mask, this is by public service announcement people! And my fam has these stylish polka dotted ones that they gave me, you know, but this is my PSA people, wear them and social distance and wash your hands and get the hand sanitizer going. Everybody let’s do this to–

Belinda: Everybody

Courtney: Please so we can get back to normal. I want to go see a movie somewhere other than my couch.

Belinda: Exactly and we’ll package that PSA and send it out to all the universities that are kind of trying to return your kids to school.

Courtney: I’m begging, please let’s get back to normal, but to get to your PPE question so that all of this stuff is not PPE. It’s really a bandana. No, I’ve heard that’s not as effective a decade now, but the PPE is really the equipment that actually protects in terms of what you inhale so that you may have heard of the (inaudible 32:42) respirators and you have three equivalent respirators. Those are personal protective equipment because they protect you from what you breathe in. There’s public science that this does–and a health professional, she’s an engineer and much bigger brain than mine. And she was telling me, she thinks this is the poor man’s vaccine that it’s not published. And we don’t have the science published on it, but that it does seem to have protective qualities even for the wearer. And so I’m wearing this and in hopes that, you know, that I’ll be okay. So yeah, the PPE, yes. There are requirements, especially for the respirators. And by the way, I will tell you if someone has an N 95, I know they can be in short supply, but if someone has protective equipment, they want to wear it, let them don’t you know, some employers are telling them don’t wear it. You’re going to scare everybody. No, no, no, no. Look okay. We’ve all got to embrace protection. And so, one of the thing for my PSA, the face shield, isn’t good. 

Belinda: It’s good?

Courtney: It’s not so good. It’s meant to protect the eyes. It’s not meant to stop airborne–

Belinda: It’s going on down here. 

Courtney: Yeah. So apparently the face shields are, and I think younger folks like the face shields, but they’re not as face-covering surgical masks. That’s what it’s about hand sanitizer, hand washing. So I’ll get off my soapbox.

Belinda: No, more of that. You know, we’re at the point in this country where we need more, not less. So one of the things we do know Courtney is that experts like yourself who spend time, advising governments, advising employers are on the frontline to a lot of really, really interesting stories. And so we’d like for you to share with us some of the more interesting OSHA or pandemic related stories that have issues that you’ve had to deal with, right.

Courtney: Pandemic? Yeah. You know, and I’m kinda self-taught so one thing I had to do when I was labor commissioner, I didn’t have a background in this stuff. And so, one thing I did was, I put on the OSHA shirt and the cap and I’d walk a half step behind the inspector and I’d go like a police ride around, but an OSHA (inaudible 35:46) and I’d follow. And if I noticed, if you just follow a half step behind the inspector and keep your head down and don’t say anything, they assume you’re an apprentice, which is more or less true. I really kind of was but I think if they knew the labor commissioner was on their work sites would hit the panic button, but they didn’t know any better and it was a great way to kind of learn from the ground up. It was my personal on the job training. So yeah, I’ll tell you though that, there’s an employer that had quite a few COVID cases at their workplace and, they really were trying to do the right thing and handle it the right way and thankfully everybody lives through that experience. And, you know, they’re kind of getting ready to get geared up again and that’s good. They’re pulling together and, you know, I think they’re going to be in a much better place. So, just like other lawyers and Barbara, I know, you know, this sometimes I don’t feel just like a lawyer. Sometimes I feel like a psychologist or a priest. And, you know, I, you know, especially when I deal with a fatality, I had a guy and he feels responsible for his personal friend’s death. And it was his work site and I studied a little psychology, but I don’t know enough to diagnose PTSD, but I really did think maybe this was one of those cases. And you know, when you have a client asking you, am I responsible for this person’s death? It’s tough because you want to help. If you ever studied psychology, cognitive dissonance is the term, or, you know, seeing yourself in the light that you choose to see yourself in rather than objective manner, that you kind of attribute qualities to yourself, according to the self-image you want to create and so, you get in those situations and I will tell you, it can be extremely rewarding if you can help a person get to a better place. And when I was on the enforcement side, you’re just siding and punishing and, you know, I would try to reach out to lawyers and work out cases in ways that made sense, but you never got behind the curtain. You didn’t get to see– like from, the wizard of Oz or from the Wiz, you didn’t see Richard Pryor, you saw the Wiz Pryor, but you never saw what’s going on behind the scenes but as an attorney to be able to help employers deal with those really difficult personal situations and they, you know, that it’s not just a line, they really do feel for the folks that they hire and they want to try and do the right thing. So those are great rewarding experiences. If I could, I will tell you that a lawyers tip, so you’ll laugh. I have this goofy title I kind of gave myself the OSHA whisperer. You speak the language of regulators gets you a better result but I think, honestly, I God’s honest truth I think it’s true. There are many of us, we came through law school and we learned to deal with OSHA like we learned to deal with opposing counsel and you just drop into this position and you started throwing jabs. And that’s, I think that’s really the opposite of what you should do with regulators. And so employers and their attorneys make mistakes all the time in their approach. Now I was a business lawyer, and then I went over to the agency and then I came back to, but you know, as a business lawyer, you know, we speak the language. Okay, what’s it gonna take? What, in other words, what check do I have to cut? What are the settlement terms? What’s the value of the case? We talk the language all the time. If you say that to an OSHA inspector, if you say that to a labor commissioner, you may have insulted that person. Cause you basically said, what check do I– what figure do I have to put on this check to make you go away? Wrong answer and I’m a business guy. I am a business side guy. Okay. That’s my bias. And if I’m in that enforcement position, I’m trying to help you. I never cared one bit about getting a (inaudible 40:39). I never cared about the penalty level. What I cared about was the human part, which is, are you taking the steps you need to fix the hazard? If there is a railing that needs to go on this side of the stairwell, okay, whatever, however, you messed up. Okay, we’ll deal with that. If I come back and I don’t see a railing on that stairwell, my sense of humor goes quick. I am livid because someone can fall and break their neck and that’s not funny. And so if you fix the hazards, you’re proactive, you act in good faith and you’re being cooperative with the agency, you can get much better results. Well, if you drop into this position, started throwing jabs at me when I’m trying to settle this matter and fix the hazard. That just gets a matter. And honestly, I had lawyers who failed to return a phone call. Look, I’m not trying to bring personal ego into this, but you know, if you had a call from your labor commissioner about a case you’re involved in, I would think you’d returned the call. Maybe not that day, if you’re busy, but sometime in the near future. And we get that or we get people just throwing punches or whatever, and they can gee-whiz guy, I just want to keep you from killing people. That’s what we’re really trying to do here. So let’s keep our eye on the ball. And as lawyers, especially in this practice area, I really encourage people to learn the interests, the underlying interests of the regulators, and be cognizant of your client’s reputation, be jealous guardians of it. Be well aware of your personal reputation as a lawyer and the consultants and the experts that you use because if you don’t have credibility, I will tell you, I’ve been in those conversations. I know what those (inaudible 42:45) they don’t necessarily follow the letter of the standards. A lot of it is about your past, your demeanour, your cooperativeness, your approach to safety and if you don’t have the right attitude, and if you’re not speaking their language, you’re going to get a worst result for your client. So I know I’m preaching, but this is some of the messaging I really would like other practitioners to know,

Barbara: But I think you’re, you’re giving really good guidance. Courtney and a lot of employers now are struggling with returning employees to the workplace and what to do and how to what the right approaches are. So does OSHA provide guidance to employers on considerations and returning employees to the workplace? And what are those considerations?

Courtney: It does provide guidance and so, I will say in candour that the agency has not been as on top in terms of providing the timely and helpful guidance that employers need at the time they need it. And that probably is a resourcing issue and I think at least from a federal standpoint, when you don’t have a, an appointed person in that position to hit up the agency and I won’t get into the politics, but I’ll just say that if you don’t have the requisite leadership, and I’m not commenting on those who stepped up and they did step up to provide that leadership, but there’s really something about having those positions filled with folks who give a clear direction of the agency with authority and so, unfortunately, that didn’t happen. There was a nominee who withdrew before finalized, and the agency’s kind of been without someone in that role, but others have stepped in and done a great job with what they had. But I think for that reason, and for also for reasons of resourcing, the agency has not been in a position to be quite as responsive as it could have been but with that said, it does provide some industry-based guidance and also some practice-based guidance. And so to a large extent, the guidance that would come out would really just kind of encapsulate what the industry is doing already. And so I think some of the more thorough and timely guidance has come from associations for trade associations, business associations, and all eyes are on CDC. Everybody’s keeping their eyes on CDC, and I think they should. So it’s out there, but ultimately, tell employers, look, you know, the tail is not wagging the dog here. You can’t let your employees dictate what is going, how you’re going to run your workplace. You have to decide and it’s a big responsibility. It’s not a power thing. It’s a responsibility thing. And employers really do have to, yes, they can take a look at what OSHA has put out. They can look at CDC, their associations, but ultimately they have to have humility and the wisdom and the ability to listen to employees and engage them and then take an honest look at their workplaces and address with employee engagement, dress the hazards at their workplaces and I tell people, look, this is not really–if you thought this was about risk avoidance, it really isn’t now. It’s about risk management. It’s a pandemic hand, meaning this is thing is affecting all of us. Unless you’re living in a bubble, you’re affected and you live in fear of this thing. Everybody has to embrace that. So in the context of that fear, how do we manage that fear? How do we manage the risk and how do we keep life going, despite it? And so the guidance is there, but really ultimately the employers themselves have to kind of take an honest look at their work environments and their work conditions, and then to really address it in a genuine fashion.

Belinda: Yeah. Had you seen yet, any claims against employers where an employee has claimed that the employer has not met their standard of care in the workplace and B and because of that, the person caught COVID-19? Have you seen those sorts of complaints come through yet? 

Courtney: I am, from an outsider view. I mean, I stick with OSHA, which is all regulatory, so it’s not the personal liability stuff, but I will say that this bleeds into a lot of that. And so it’s percolating. And so in some States and the workers’ comp commissions and the courts are just starting to deal with it. We don’t have clear law, but you do have employees who are bringing work comp actions and so I don’t have the exact terminology probably needed to get a work comp lawyer in here, discuss, but the analysis is a little different than OSHA, because OSHA is about hazards and workers’ comp is about, as I understand injury and illness, and you can have an injury illness without a hazardous situation created by, and you can vice versa. So the analysis is different, but I understand that the workers’ comp commissions and the courts are dealing with whether these can be deemed to be work-related if it was due to communal spread versus work-based exposures. Is there a rebuttable presumption of getting it from work as opposed to getting it from elsewhere? So OSHA standards are not really intended for civil liability purposes. And back in, I know at least in my state, there’s a prohibition against using it for that purpose, but you know what the plaintiff’s bar is out there. And a lot of this stuff is public record and it’s going to be used. So it’s out there and it has a lot of folks worried there are bills being proposed in States and also in Congress to cap or limit liability on employers. But I’m not aware, well, there are some states that have passed it, but most not. So that’s an issue that it’s really in its infancy. And it’s going to be interesting to see how that plays out.

Barbara: You know, you mentioned that OSHA is not really designed for civil enforcement. Tell us about the enforcement mechanism under OSHA and how OSHA does go about enforcing violations.

Courtney: So if you knew the truth, you wouldn’t be quite as scared.

Belinda: Okay. That’s a disclaimer

Courtney: No, it’s true. When I left the agency and I announced it to the staff, my deputy commissioner looked a little glum. He goes, you’re going to go practice on the other side, aren’t you? And I said, well, yeah, you should want me there. You’ve got someone to talk to, your bud. And I was like, why don’t you like this? He goes, well, we’re going to lose our mystique and I said, you guys aren’t that mysterious because, well, you know, but they don’t. So yeah, most of the citations are for what’s called a serious, which means if the worst happens, it would have a tendency to cause serious injury or death, and that’s as opposed to non-serious, but non-serious is usually something revolves around paperwork or something that doesn’t really affect workplace safety. So usually you’re in, what’s called a serious penalty and per item, it actually increases by inflation. It used to be up to a thousand dollars, $7,000 per item, max and now we’re up to just north of 13,000 and that’ll continue to steadily increase. It’s where, honestly, you could have a case where it was horrible and a fatality case but, you know, people think, well, gee whiz, why just a $13,000 penalty, or why something just in double digits and not at least in, you know, or something at five digits instead of six, at least, or seven, it was just what you usually see in civil liability context. And that’s just because of the way it’s set up. And so it does get much more serious if you have repeat offences or if it’s a wilful violation, then you could be talking about the penalties that are tenfold and usually are tenfold that, so then you’re talking six-figure and some of the really big ones that you see get headlines, that’s where you have quite a few and so, the true cost of an OSHA citation for most employers is not the monetary penalty. Most of us can pay a few thousand dollars and get and move on to the next day. The true cost is ensuring that you don’t have a repeat offence. And so, and there’s a look back period of several years and if you have a citation that became a final order and you have a repeat either of that section of that standard or of very similar facts, then the agency could hit you with a repeat and then you’re, you’re talking about tenfold in terms of penalties, but even then they’re really big cost for a lot of employers. Let’s say you do construction work and you do work for a department of transportation, or you get contract workout, or you work for a large energy company that bids worked out well, then they look at, how many serious citations you’re getting (inaudible 53:33) and then they take that into account in terms of whether you get the work or not. And then you’re talking millions. The real cost of an OSHA citation often is either lost business opportunity or the cost of us lawyers, because we are expensive creatures.  

Belinda: Yeah

Barbara: Yeah. Talk with us about retaliation. We haven’t talked about that yet, except briefly at the beginning and what protections there are under OSHA for employees who report unsafe working conditions report, especially in connection with COVID-19.

Courtney: Oh, sure. So yeah, if you hear 11(c) that that’s retaliation protection under the OSHA act and also one thing, you may not very few people know this OSHA enforces anti-retaliation protections, not only for work safety, but for about two dozen other federal statutes and so I actually had one for bank fraud and it was in an OSHA office and someone gave it to me because when they see OSHA, they just sent it over to me. And in the middle of some bank fraud thing, I’m like, oh, well, hey, I don’t know this act to OSHA. And that’s only because OSHA is the agency with the horses. They have the folks in the field that the field offices and they have the capacity and they do a lot of anti-retaliation stuff. Anyway. So here you go take care of this, and that’s really kind of how that happened. So, I emphasize employee engagement a lot, as partly because it’s good business practice and partly to protect employers because the ones that don’t engage and listen, the employees are going to complain somewhere. They don’t feel like they can go to the supervisor or to the manager. They’re going to go somewhere and if it’s not Facebook, if it’s not a newspaper or to whatever news channel on your side, then there they’ll go to the agency. And so, and they absolutely can, and there’s absolute protection to go and blow the whistle and reports agencies. And so you have to be extremely careful if you get cited and it was based on a complaint. It’s kinda like basketball, the ref doesn’t call the first foul, they call the second foul. The one that they see. So even if the employee was wrong and it’s unjustified this and that, and the other, if you give the appearance of retaliating against that person who you think was the complainer, then you just doubled your problem by getting hit with a retaliation claim on top of the citation. Big problem. So I’m not saying that you can’t go to employees and engage even after workplace incidents, or even after someone drops a dime with OSHA. I’m not saying that I am saying that you should be extremely careful about assumptions as to who the complainer is. And even if you’re sure of it, you have to be extremely careful about not giving any width of retaliation against that employee, because then, you get hit with a second one and the retaliation claim may not be justified and sliced. You may not have taken any action against the employee, but do you really want to have to defend it? 

Belinda: Yeah

Courtney: So, taking a breath, I always like to get, when it comes to citations and especially in retaliation actions, sometimes I am the one to interact with the agency, but sometimes I’ll appoint, well I call my Denzel at the operation, the smooth talker. And I say, Hey, Kate, you go talk to the agency, I just want one point of contact, someone who can keep a level head, keeping your eyes in the bigger picture and stay cool. And so, and this kind of goes to how you interact with the agency because I’ve had employers oftentimes want to overshare their opinions about OSHA and government and privacy and all these other political issues or whatever. This is not about that. This is about trying to get past this citation, get back to doing business and so when you get hit with these claims, and especially in retaliation context, you don’t want to give the inspector the opinion that this claim was justified because of the way you act toward them. So, and when you get ’em look, just get the right person to speak for you, be it, your attorney or the right person, internal to the organization and then, usually what you can do is you just let them interview people. Maybe you put together a position statement, much like you might do with EOC or other agencies. And you explain, you let them know the full picture and then, it’s kinda like Obi-wan Kenobi. You kind of a Jedi mind tricks. These aren’t the droids are– move along. You want them to get less interested in your case and then move along to a much more interesting–that’s the goal. We want them to move along to someone more interesting and so how you address these situations and who you have doing that is very, very important.

Belinda: Right? Great. So what would say are the top three or four priorities that an employer really needs to pay attention to, to stay abreast of OSHA regulations, either the ones that were already in place or the ones that are evolving because we are in a pandemic as we look at not only our essential workers, the ones that have had to show up to the workplace and continue to show up, but also with respect to (inaudible 59:54) return to work plans that an employer might be putting in place?

Courtney: I think definitely work refusals. Having a game plan before someone uses to work is important because the work refusal requirements are narrower than what most employees think they are. It’s not, if you feel unsafe, again, this is a pandemic, no one is unsafe or no one could be completely safe. We all feel unsafe but if you are, just trying to address that with your employees then, and if they engage them, now, if they feel unsafe, they can’t just refuse to work. It has to be a reasonable refusal, objectively reasonable to an objective observer. Someone else would say, oh yeah, that’s unsafe. They shouldn’t be working on top of each other like that. It also has to be made in good faith. You can’t have a whole bunch of people saying, well, we’re going to refuse. I hear we get two weeks paid, leave on the new federal law. Let’s all go get paid and leave. No, it doesn’t work. And they also have to use the usual avenues of raising the concern with the employer, with OSHA, with somebody and only if that doesn’t work or they don’t have enough time, or, you know, there’s no reasonable solution that can be worked out. Then they can refuse to work without fear of retaliation, but that’s much narrower of a situation than probably most employees believe. So anti-retaliation, especially in work refusals is really huge and thinking through ahead of time, how am I going to deal with employees who refuse to work? And at what point am I going to draw a line? And some people may legitimately feel like, look, I can’t do this. I’m too scared. And how are you going to react to that? Now, Yes, you can play some hardball or at least, you know, some tough love and say, well, look, you know, we’ve done all the right things. We’re following the guidance. This is how we’re going to do it and this may or may not be the place for you to work. And maybe you take that approach and that is legitimate. Then again, maybe you have another approach in which you think ahead, okay, am I going to offer paid leave? And to what extent can it provide paid leave? And can I budget for that? And what if, when other people hear about this, how will I deal with that? I had a boss that had a sign out front that said, what I do for you I must do for all. It’s not about friendship. It’s all about look, being fair and so addressing that in terms of paid leave or how flexible you are with your leave is important. But the number one thing I would say, and this comes from experience from inside the agency. It’s not just about the standards here. Okay. We can follow these. Okay. You can have the best policies in the world and put them in a notebook and pattern, and there’s beautiful sitting there on your shelf and there you go. You have to enforce it religiously and you have to document it and so, if you, like Jerry Maguire, I would say, help me, help you document it, what you’re doing and follow it religiously and that you’re disciplining. So not only should you have your graduated system of discipline as we do in EOC or other contexts, but file religiously and document your use of it because you can have the best policies, but the most, I think the most common complaints going into OSHA and they’re coming in by the thousands is that their employers aren’t enforcing the rule, they have a great social distancing policy. They have all the signs, they give everybody the mass the whole night, but nobody’s doing it and that’s when they drop it down with OSHA. And you have to show and document that you are religiously enforcing this. And if you see two people walking and talking in the hallway, chatting a little too close, you don’t have to slap them with a write-up but if it’s something that’s common and– so the actions and emissions of your managers and supervisors are imputed to the employer, like in any other employment law. So they have to be your eyes, ears. They have to be your enforcers and they have to be unpopular and discipline people and document it and stick it in the file. And I think honestly, they may not be your drinking bud, but they sure will start to respect your rule and you’ll get more respect from the agency and you’ll be able to make your case a whole lot better if OSHA comes knocking.

Belinda: Yeah, that sounds right and it also requires employees to leave their political opinions and views on face mask or anything else at the door and really focus on what do we need to do? What’s my responsibility in this workplace, particularly if you’re a leader?

Courtney: Yeah. Tell them this is a democracy and I’m the dictator.

Barbara: I liked that. I liked that 

Courtney: You gotta be the boss. 

Barbara: I think we’re coming up to close to the end of our time together today, Courtney, but any parting words of wisdom for our audience, as they think about this agency that they may not have thought about very much before COVID 19.

Courtney: So be proactive, if you don’t have someone from, especially if you’re in a high hazard workplace, be it COVID or other hazards. If you don’t have a relationship with someone, you can call an agency, develop it now. Personnel is policy. Who is in place as a whole lot to do with how the policy is implemented because these standards, I mean, there are vague terms. There are points of argument and people bring their world views into this, including regulators and so having that kind of– it does a couple of things If you develop that kind of relationship, one, they get to know you and who you are and the conversation that happens inside the room with these agencies is not always, necessarily exactly contained in the ‘F’ of the field operations manual or the standards. A lot of that has to do with what they know about you and what they don’t and so you want them to know you a little bit and know what you’re doing so that you’re not starting on the zero, was with someone you’ve never met. And by the same token, you want to know them a little bit and you if you want a personal lifeline, you’ve got to have some people in the agency that you can call. I email, texts, and sometimes even hit on their cell phones, enforcement officials all the time, to try to get the latest and greatest and what they’re thinking and where they’re going with something. I’m not saying they’re right. I am not at all saying they’re right. And sometimes we have to litigate these things. And sometimes the agency’s wrong. It’s not personal. It’s just, we just sometimes need a neutral arbiter to decide what the law actually is and what the proper policy is. But along the way, you want your reputation to be one that you have to have credibility, they have to know that you tell the truth, they have to know that behind closed doors, they have to trust and know that you’re doing what you say you’re doing and you’re trying to do things the right way and if you make a mistake or if he has something wrong, you just own it and they’re fine. And then they move on to some, someone else who doesn’t get it. It is so developing that relationship now is really important and a lot of lawyers tell their clients and it drives me nuts. They tell their clients, don’t call OSHA. They’re going to come after you. They want to hear from you and no, they’re not going to send an inspector out your way because you called and ask a question about an issue that was fuzzy to you. If anything, you’re showing that you are interested in the issue and that you’re trying to do the right thing. Now you may get an answer. You don’t want, you may even get an answer from someone and they may not always be the right answer. That is true and I guess that’s what lawyers are for but you know, at least developing a relationship, if it’s a local inspector or regional director or an area director or someone, and even if you don’t even have to do it so low, you can do it as an association. They love free food like anyone else. Invite him to your meetings for your associations, have them be a speaker. Some of them love that and invite them and ask them the questions and get to know them exchange cards and follow up and get them on the automatic dial. Most of them are true believers and if you reach out and you let them know, you’re interested in what they do and invest practices and you consult with them and they eat that up. So yeah, develop the relationship. You can know the standards so you can know the law. You have to know the person on the other side. That’s what you have to know. You have to have the relationships so that you can get better results, not as a favor, but just because you have a shared relationship and a shared understanding.

Belinda: Great. That sounds good. Well, thank you very much for being with us today and providing insight. Like I said, into this agency that a lot of people don’t think about very much, but I’m sure glad that you’re out there doing it and helping employers deal with OSHA issues. 

Barbara: Yeah. I definitely appreciate what you shared today, Courtney, because you gave us a great mix of, the technical and the practical, which is what our employers need today and so it’s been very helpful. Thank you. 

Courtney: Sure. Well, thank you. It’s been a real pleasure–

Belinda: Thanks so much

Courtney: and all right, good spending this time with you.

Belinda: Take care

Barbara: Thank you for listening to Today’s Workplace. 

Belinda: And if you want to hear more or learn about us or subscribe, go to todaysworkplacepodcasts.com and you’ll get all the great information that we shared today and find out about some of the interesting topics that we’re going to talk about in the future.