The views expressed on today’s program are those of the speakers and are not the views of Today’s Workplace, the speaker’s firms or clients, and are not intended to provide legal advice.
Since March of this year, the Occupational Safety and Health Administration (OSHA), with guidance from the Centers for Disease Control and Prevention (CDC), has taken on greater significance in terms of suggesting the standards for workplace safety in connection with the COVID-19 pandemic. OSHA mandates that an employer provides a safe work environment for its employees. Failure to comply with OSHA standards or OSHA’S General Duty Clause, which requires employers to provide a place of employment that is free from recognized hazards that are likely to cause serious physical harm, exposes employers to the risk of citations and fines.
President-elect Biden’s campaign platform included a promise that, if elected, his administration would strengthen OSHA’s enforcement power. Given the expectation of greater OSHA enforcement, it is recommended that employers draft and implement infectious disease preparedness and response plans, train their employees on best practices to avoid the spread of COVID-19, and monitor and apply CDC guidance as it continues to evolve.
Along with the transition to the Biden administration, employers can expect to see more instances of cooperation, sharing of information, and enforcement activities among agencies that touch on employment, such as OSHA, the National Labor Relations Board, and the Equal Employment Opportunity Commission. There are 28 OSHA-approved State Plans, operating statewide occupational safety and health programs. State Plans are required to have standards and enforcement programs that are at least as effective as OSHA’s and may have different or more stringent requirements. Employers can expect more federal oversight of the statewide occupational safety and health programs in an effort to ensure that the state programs meet the minimum requirements of the federal act. Employers can expect continued increases in OSHA whistleblower activities and consideration of greater protection for whistleblowers
Now that approved vaccines are being administered, many employers are considering whether they can and should mandate that employees take the vaccine. Employers should seek legal advice regarding the risk of requiring employees to take the vaccine and how to handle situations where employees refuse to take the vaccine and may require accommodation.
Joining us is Courtney Malveaux. Courtney is a principal in the Richmond, Virginia, office of Jackson Lewis. P.C. He is co-leader of the firm’s Workplace Safety and Health practice group and the firm’s Construction industry team. His practice focuses on representing employers cited by the Occupational Safety and Health Administration and other regulatory agencies, oftentimes following catastrophic incidents.
Courtney advises and represents employers in employment law matters, including retaliation claims, employment discrimination, unemployment benefits, and wage claims. He also represents business associations in state and federal legislative and regulatory matters, and he has testified before Congressional and state legislative committees on workplace safety and health matters.
Courtney represents the industry on the Virginia Safety and Health Codes Board, and pulled together a broad coalition of business and safety associations to pass laws in four states to make voluntary compliance a permanent part of a state Occupational Safety and Health Act.
Before joining Jackson Lewis, Courtney enforced occupational safety and health law and other state and federal labor laws as Virginia’s Labor Commissioner while also serving as President of the National Association of Government Labor Officials.
9m 26s Recap of last podcast with Courtney Malveaux
11m 24s Introducing Courtney Malveaux
12m 09s What is OSHA concerned about COVID-19?
14m 46s What regulatory changes are being done in OSHA?
17m 10s What is the general duty clause and why is it significant in the enforcement of OSHA?
20m 54s Explain what are worker exposure levels in protective measures
22m 54s What should employers be doing now in terms of preparing for increased enforcement?
26m 27s Was there official guidance from OSHA, for returning employees to the workplace?
29m 07s Did president-elect, Biden commit to anything on the OSHA front?
34m 46s Do you see any kind of specific restructuring within OSHA to establish COVID-19 focused units?
36m 32s Who do you think might be the next Labor Secretary?
37m 37s Do you know if OSHA has started issuing citations to employers for COVID-19 and fractions?
41m 06s What can employers expect in terms of process, if they are issued a citation?
47 15s What are the top three things that employers need to remember in light of this new change brought on by COVID-19?
Barbara: Good morning. And then I don’t want to do that [inaudible 09:27] it’s that altogether because it doesn’t matter whether it’s morning. All right. Hello. Welcome to Today’s Workplace. We’re very fortunate this morning to have a repeat guest Courtney Malveaux, to talk with us about recent developments in OSHA law. Courtney was on our program a few weeks ago and gave us a primer on OSHA and explained how OSHA is impacting employers with respect to COVID-19. And today he’s going to give us an update. Courtney Malveaux is a principal in the Richmond Virginia office of Jackson Lewis, and he is called leader of the firm’s workplace safety and health practice group. And the firm’s construction industry team. Its practice focuses on representing employers cited by OSHA and other regulatory agencies. Sometimes, following catastrophic incidents. Courtney advises and represents for employers and employment law matters, including retaliation claims, employment discrimination matters, unemployment benefits, and wage claims. And he represents the industry on Virginia safety and health codes board, and pull together a broad coalition of business and safety associations to pass laws in four States to make voluntary compliance a permanent part of the state Occupational Safety and Health Act. Before joining Jackson Lewis, Courtney enforced occupational safety and health law, and other state and federal labor laws as Virginia’s labor commissioner. So once again, welcome Courtney to Today’s Workplace.
Courtney: Well, thank you for having me. It’s a real pleasure and thank you Belinda as well.
Barbara: Thank you again and welcome Courtney for coming back and speaking with us and giving us an update. So much has happened this year with COVID-19. So, I can imagine that an agency like the Occupational Safety and Health Act Agencies, both federal and state have had a lot to do in this area. So, one of the first questions I wanted to ask you is about COVID-19. It’s a virus and it’s not what we typically think of as a traditional safety hazard in the workplace. So why is it, you know, remind us, why is OSHA concerned about COVID 19?
Courtney: Well, and by the way, I really sincerely hope by the next time we talk, we’ll talk about something other than COVID. We’ll be passed this pandemic. I’m hoping. So, keep the masks, the hand sanitizer. Those of you choose to get vaccinated, please do so we can find something else, but that’s where we are. I will tell you in disclosure, I really don’t think of it as much as a workplace hazard as a public health crisis. And it’s something that’s spread both in the workplace and communally and worldwide. So that’s just my personal opinion. I’d put that out there to say that this is something that’s really more under the domain of CDC, health departments and those types of institutions. Now the FDA and working with the vaccines. And so, I don’t see OSHA as having as strong a role in this, possibly it does, but OSHA does take a role in this and to the extent that we’re spreading the virus at work, then I do think there is a potentially limited role, but I emphasize the limited. OSHA has enforced some standards, and it increasingly, into this winter, has enforce standards like the personal protective equipment standard, respiratory standard, record keeping standards, and even what’s called the general duty clause, the catch all. And so, OSHA in States that have their own OSHA programs are enforcing those. So yes, there is spread in the workplace much like there is communally. The tough thing for employers is figuring out, what’s the difference? Is it spread at the workplace? is it’s spread communally? How do you know? And so, I do think that if employers take responsible steps, like places of public accommodation and other establishments. Then I think if they do the right thing, then I think they’ve done what they need to do. But in terms of extra enforcement and extra attention in the workplace, I don’t know that that’s a good fit for where we are.
Barbara: Courtney, what regulatory changes are you seeing in OSHA?
Courtney: So, mentioned, and right now we’re talking mid-December, and so the current administration in charge of OSHA will be in place for about another five weeks. And so, it has responded with, again enforcement of existing standards that have been with us. And it is shown that by using those standards, it can use those as effective tools. I think there has been less use of what’s called the general duty clause, which is something that doesn’t fit under those standards that we have become familiar with over the years. And so, there’s some use of that but, and I noted this, the last time we spoke, there were States; Virginia was passing or had passed an emergency temporary standard specific to COVID. And since then, California has moved forward with one, Oregon, Michigan, even New Jersey has a standard, even though it doesn’t have its own OSHA program. So, some states have stepped up and done that. So, what will we see, I think once president-elect Biden lifts his hand from the Bible of the swearing in ceremony, shortly after we will see an emergency temporary center for OSHA nationally. And so, what provisions it will include, what States will kind of look to for guidance in which way it will go, we’ll see. But I think one of the first things we’ll see is an emergency temporary standard for COVID for OSHA. And then, for those 28 states that run their own OSHA regimes, they’re called state plan States. I do see OSHA pretty much kind of coming down on those states and saying, look, thou shalt have follow this standard. And you will have an emergency temporary standard for COVID whether you like it or not. And so, I think we’ll see that and I think we’ll see a whole lot more enforcement as well.
Barbara: One thing I’d like you to help us understand, and I know you talked about this before, but you mentioned the general duty clause a couple of times. So, tells us again what the general duty clause is and why it’s significant in the enforcement of OSHA.
Courtney: Sure. So, the OSHA, the Occupational Safety and Health Act passed in 1970 and then shortly after that, OSHA got moving on promulgating books and books of standards. And I have them right here on my bookshelf. They are all around me. That’s my world
Belinda: You said that with great pride Courtney
Courtney: What’s that?
Belinda: You said that with great pride
Courtney: I don’t know if it’s pride or if it may be a little sad, I don’t know. When my assistant comes in with the new fresh OSHA standards and brings them in. I literally jumped with excitement. You don’t want to go there. It’s not where you want to be. There is only a handful of OSHA lawyers out there and they get what I’m saying or the rest of the world just shakes their head. So, when OSHA was established, it really got busy in promulgating these standards. Books, and books of standards, and they apply to general industry, they apply to construction, they apply to maritime, you name it. And so, the only thing is, no matter how many brains are you involved in this, no matter how much time you put into this, you can’t possibly have a standard for everything that can go wrong for every hazard out there. And so, this all happened over 40 years ago. In disclosure, I was at elementary school when all this happened. So, for everything they could not have thought of, they established, well, the OSHA act itself has what’s called the general duty clause, excuse me. And it’s a catchall. And basically, it requires employers to provide employment in a place of employment that’s free of recognized hazards. So, if there’s a latent hazard or if there’s something that you could not have foreseen or take, you know, then the employer isn’t necessarily on the hook for that. But, and that’s how OSHA is different from workers’ [inaudible 19:41] is about people getting hurt. OSHA is more about recognized hazards. So, it is for anything and everything that they couldn’t have jumped up. Well, the novel Coronavirus by definition is new. Nobody could have conceived of the novel coronavirus or until a year ago and passing a standard. I mean, you think passing an act of Congress takes a long time, try passing an OSHA standard, and then they get enjoined in litigation. So, it takes years. So, that’s what the general duty clause is and there are elements as lawyers that we have to prove, to make our case. And so, the lawyers who represent OSHA would have to make a case that it would apply and meet the elements for general duty clause violation, but it’s really can be done. And I think frankly, that this is exactly the kind of time that the general duty clause would kick in for something that nobody dreamt up, but you know, could be looked at as a workplace hazard.
Belinda: Excuse me. Yeah. So, in addition to understanding general duty clause, how about explaining to us, worker exposure levels in protective measures? What does that mean?
Courtney: Well, and I think what you might be, let’s say in the COVID context, you may have exposure levels, low exposure levels, medium, high or very high. And so generally, like, for example, in COVID, if you have low exposure, I am alone in my office. My assistant came in a little while ago. She’s at least 20 feet away. I’m as low hazard as it gets. And so, there’s not a whole lot I need to do to protect myself. Maybe I’ll wash my hands. If I walk around, I’ll wear a face covering, but that’s about it. Medium hazard is if, for example, you work for a retailer. I mentioned I was out doing my last-minute Christmas shopping last night. And so, everybody’s got the masks on. It’s busy there. A lot of people, there is some close contacts happening, you’re touching a lot of the same stuff. And so, then you, that’s more of a medium hazard type situation. And then, God forbid if you land in the hospital, those folks who are working there, I know people who are working in emergency rooms right now, and they’re exposed to the COVID, they’re dealing with bloodborne pathogens. There’s people who come in because they are very sick or having problems. And so that’s more high hazard. And so, the protective measures there might be more in terms of, for example, a negative pressure ventilation or additional personal protective equipment, you name it. And so, you just have different levels of protection depending on the hazard level of your exposure.
Barbara: So, Courtney given the anticipated increase in enforcement, possibly national mandates with respect to OSHA enforcement, even in those states that have a state enforcement scheme, what should employers be doing now? What should they anticipate? What should they be doing now, in terms of preparing for increased enforcement?
Courtney: So, if you look at the emergency temporary standards that are online and notice that, and I’ll try not to get too much into the politics, but it does kind of play a part in the enforcement and where the agency goes, because you know, the agency’s going to change once there’s a change of administration. And so, I anticipate that with emergency temporary standard, what was a recommendation that employers actually put pen to paper and write and infectious disease preparedness and response plan. That’s something that was recommended last spring, I think back in March, I think that will become a requirement. And so, in Virginia, when we were the first to passes standard an employer said, oh my gosh, how do I do this? And so, and some critical thought had to be put into that for each employer. There are templates put out by the agency, but the templates include a lot of requirements that don’t necessarily exist in the law. Some of it is suggestions that the agency just kind of put in there. And I think employers, if they have not done so already, putting together infectious disease preparedness and response plan would be a strong move. And if it doesn’t contain every single element in the standard that comes out, you’re probably going to cover 80 or 90% of it with good advice. Another thing to do is, if you haven’t done so, a training and a great starting point is the CDC guidance that’s coming out. And you could also take a look and see, well, what other suggestions are contained in those emergency temporary standards in the States? The incoming administration has a transition team that includes many people from California. So, if you want to see where the country’s going, I think looking at where Cal OSHA has been provides a good starting point. And so, and also in California, is the infectious disease preparedness- infectious, I’m sorry, illness and injury prepare preparedness plans. And so, ITP two is what we call it. This is something that employers basically have to put together like the infectious disease plan in writing. A plan to deal with injuries and illnesses generally recognizing the hazards that exists, what kind of protections are being put in place. And so, I think that’s something that, again, it’s not required, but there was an attempt under the prior administration to enact that. That’s another thing that I think that could be coming down the pike. And so, that might be a good other way for employers to get ahead of the game, because I really do think those are some of the directions where things are heading with OSHA.
Belinda: So, in addition to the preparedness plans and some of the other things you just mentioned, was there official guidance from OSHA, for returning employees to the workplace?
Courtney: Really more from CDC. And so, OSHA tends to follow CDC on that and that’s evolving and so returned to work, It’s interesting. So, it was right now it’s if you catch COVID and if you don’t use a test-based return to work, then there’s a time-based and that’s 10 days, and that’s 10 days after you provided this specimen that got a positive test. Okay. And then from that point, it’s 10 days after that, plus at 24-hour period of no symptoms. So that includes, no fever and that’s without the benefit of any fever reducing medications. And so, that’s where we are with return to work right now, and also CDC on a different topic, but related, is people who have been exposed to someone with COVID. And so that’s where quarantining comes in and that’s a little bit different. And so, you haven’t had a positive test, but you think you might’ve caught it because you’re in close contact with somebody and maybe you have symptoms, or maybe you don’t, but you don’t have a positive test yourself. And so it used to be 14 days and still CDC says 14 days, but there are conditions in which you might be able to shorten that timeframe down to 10 days or with a test, then do down to 10 of your symptom free, or even seven, if it’s symptom-free with a negative test, but keep an eye because CDC, as it’s looking at case by case, by case, it’s kind of redefining its terms, especially when it comes to return to work and quarantining. And so, I’m hoping that when OSHA passes a standard, it is a standard that will embrace the changing science, because if the standard is so detailed that it sticks the science in a cryogenic freeze, and you’re stuck with a science of January, and then you find yourself in March or April with CDC going in another direction, I’m hoping that this standard will embrace those changes that CDC comes out with.
Barbara: Good. Let’s talk a little bit about the incoming administration. Did president-elect, Biden commit to anything on the OSHA front? Has he gone on record thus far as saying what his views are with respect to OSHA? So, what’s he said so far?
Courtney: So, it’s funny. I mentioned OSHA lawyers are few and we can be a little geeky, but for whatever reason where we became invoke a little bit this year and for whatever, well COVID, of course, we had a presidential candidate campaigning on what he’ll do with OSHA. And we are usually the Island of misfit toys out there. Nobody’s paying attention to us. And when we heard campaign pledges on OSHA standards, we thought, oh my God, I mean, what’s the world come to here?
Barbara: What a year. What a year.
Courtney: Right? Nobody campaigns on OSHA, but a candidate Biden did. And now president-elect. And one thing he promised, which I don’t think he’ll be able to do, I think it will do partly, is he wants to double the number of inspectors. And so interestingly, under the current administration, by attrition, the number of OSHA inspectors out there has dropped and dropped and dropped to historically low level. And so, I think that you can replenish those positions. To get additional positions will require authorization and funding from Congress, depending on what the makeup of Congress will be. We don’t yet completely know. I’m a little skeptical, especially when money is tight. And so, in Virginia, we cannot go into deficit spending like the federal government can. So, there’s more leeway to get more funding for that, but we’ll see. And that’s one thing that candidate Biden promised. So, there’ll be some other changes. I think you’re gonna see, following the COVID emergency temporary standard. I think they’ll pick up a permanent infectious disease standard. And actually, that was pushed under the prior administration after H1N1, the swine flu and now with COVID, I think there’s going to be a whole lot more, a big push for that, and that’s been promised. There’s going to be some administrative changes. And so, you may hear me say, talk about how policy is personnel or personnel is policy. Who is in place has a lot to do with how you enforce. And so, little things that may not get a lot of press certainly may make a dent. And so, for example, I think the guidance that OSHA comes out with, it’s going to change and the guidance that used to well, the guidance now that kind of encourages incentivizing safety and workplaces, I think we’ll go back and reverse to kind of discouraging that, with discouraging language. The reason being that there are unions and other stakeholders who believe that you’re not necessarily incentivizing safety itself, but the reporting of injuries and illnesses. And so, they tend to frown upon incentives, employee incentives. So, I think there’ll be some changes in that. I absolutely, I’m 99% sure there are going to be additional whistleblower protections coming down the pike. That’s just something that, that labor has been thirsting for in a big way. And it’s been proposed in Congress in various ways. And so that’s something that you’re really, I think you’re going to see. I think you’re going to see, let’s see, a lot more in terms of, I mentioned the state plans that kind of do their own thing. I think that for example, North Carolina, South Carolina States, where they did not necessarily raise their penalties commensurate to what federal OSHA did several years ago, I think there’ll be a push in those States to get those penalties in line with federal OSHA’s penalties. And that was an 80% increase and that was pretty big. So, you’ll see that. And also, I think a lot more cooperation between the agencies and sharing information and they do some of that already, but I think you’ll see more of it, information sharing and referring matters for potential enforcement between OSHA national labor relations board, EEOC and agencies that touch on employment. And who knows, maybe IRS because employee misclassification. Whether you are deemed to be an employee or an independent contractor, is the fundamental question for OSHA. OSHA can’t step in if you have an independent contractor, but if you’re misclassifying, it sure does. And we’ll have a tendency to share and refer matters with other agencies. So those are some things I definitely think you’ll see.
Belinda: Okay. Do you see any kind of specific restructuring within OSHA to establish kind of like COVID-19 focused units since this is novel and we don’t know if in the long run we’ll be able to manage it the same way you’ve managed other workplace safety hazards through OSHA? So, do you see anything like that happening?
Courtney: I don’t know if it will entail internal structural changes. And to be honest, I haven’t heard anything on that. And that’s a decision that might get made once there’s a nominee for the assistant secretary of labor in charge of OSHA. So, it might be that I’m out of the loop. Well there are some loops I’m in and some are not, it be that it’s a little more granular than where people are and they may give the assistant secretary of labor for OSHA leeway to try to structure that.
Belinda: Yeah. I was just asking because, you know, it seems like COVID is here to stay for a while. And again, it has introduced so many different things that we have to be aware of and different ways that we now have to keep employees safe in the workplace. And so seems like it would take some focused energy to kind of blaze that new trail in figuring out now, how does an agency like OSHA, whether it’s state or federal manage those issues.
Courtney: Right. Right. And right now, we don’t even have a department. We don’t even have a Labor Secretary nominee, so.
Barbara: That’s the next question. What is your crystal ball tell you in terms of who that person might be? Who is that, do you think?
Courtney: There are several of the names that have been mentioned and many individuals who have been considered who are on the transition team or considered, are from California. And so, look West candidate Biden has been consistent in saying he would be the most pro-union, most pro-labor president in history. So, I think, look for folks with ties and those communities. Stay tuned. You know, it’s interesting, a number of trial balloons get floated, and then they reach for somebody and nobody heard of, so we’ll see.
Belinda: So, do you know if OSHA has started issuing citations to employers for COVID-19 and fractions?
Courtney: They have. Now that ramped up in the last several weeks. And so, arguably, it very well could be because inspections take a while and the agency has up to six months to issue a citation, and they’re not always announced. And that data may not be provided. The current administration has been more reticent about issuing press releases on citations issued. And that’s another change I think we’ll see is, I think we’ll see more in terms of citations getting put out to the news media by the agency. So, there has been a pickup uptick recently, but I think that’ll increase with more inspectors. Also, another thing I think we’ll see, there is more egregious and higher monetary penalty citations, and maybe more in terms of criminal citations. And there’s even suggestions of individual criminal liability for employers who may be in a position of authority. And so that’s something that, we may see.
Belinda: Is that something new or as OSHA used criminal liability before?
Courtney: Of individuals? No, but a criminal actions? Yes. And so, like I said, the personnel is policy. And so, some might be a little bit more conservative and reserved in issuing a criminal and others might be more apt to do so. I had a case, when I first stepped in as Virginia labor commissioner and it was the worst I’ve seen and I won’t get graphic, but it was a fatality. It was a landscaper and there’s a piece of equipment that can be very destructive and they removed, actively remove guards from that equipment, safety guards. And they had children in their family working with them and it caused a fatality. And I will just leave it at that. It was the worst I’ve ever seen. And at that point I said, you know what, because there were active steps taken to remove safety guards and involve children. Then I recommended that we move on out with a criminal because of criminal citation. Of course, that would, now in that case, it was up to the discretion of a Commonwealth attorney to pursue, ultimately it wasn’t pursued, but it’s kind of a judgment call, but there are some cases where you really do say, look, this was so blatant and you took active steps and this is more than just the business being on the line that a monetary penalty just won’t do it. So, it does happen. But I think we’ll see more of that.
Barbara: Yeah, Belinda asked about citations and whether there has been an increase of citations, could you just walk us through what an employer can inspect expect if for example, they get that unwanted call from OSHA and an inspector shows up. What can they expect in terms of process, if they are indeed issued a citation?
Courtney: Sure. So, and since March or April, employers have, I think they might’ve gotten a little spoiled because most of the enforcement has been by fax phone, and telephone and not by the surprise inspections. And so, OSHA really scaled back on those. And it will tend to show up if there’s something catastrophic that occurred, there’s a fatality for certain reasons, but the program inspections have really dialed back on those. That’s something that once a pandemic, and they do that because they don’t want their employers to, they want to keep their employees safe and so they’re looking out for inspectors. And so, I think it’ll ramp up when the pandemic begins to wane and they feel safe for doing so. And so, when that happens for those who have been subjected to one, they’re not fun, I’ve had trips to the dentist that were more fun, but yeah. And one thing is when they show up, you know, you can let them wait just a little bit. And so, you have the right person to connect with the inspector, someone who kind of is aware of the limits of what the inspection should be, especially if they’re not doing a general inspection of the entire workplace, better there, maybe on a complaint for a specific purpose. Then the fourth amendment does kick in and they do have requirements. They can be required to get a warrant that would limit, that would articulate the limits of the search. And I don’t necessarily mean, usually employers waive that, but there should be some kind of definition as to what they’re looking for and you want to know if this is a targeted inspection and if it is, then what are we looking for? And so, I tell them, look, make sure you get the right person involved so that they can stay kind of cool. Ask the right questions along the way, take pictures when they take pictures, it’s fine to ask the inspector questions. I think they want to be asked, as long as you’re professional, as long as you’re polite, then it should be a conversation because there’s information you will not get later in the process, you will get cited and have to speak with agency and informal conference. And you’re not going to know what’s in the file that they’re looking at. They will have interviewed employees behind closed doors and you will not have been privy to that conversation. And so, the agency will come from a standpoint of superior knowledge through the informal conference. So, let them wait a little bit, formal coffee, sneak in decaf. I’m not big on highly caffeinated OSHA inspectors and treat it as a conversation, and understand that. And I think getting advice for the informal conference and through the inspections important, because sometimes the agency does ask for information that it may not necessarily have a right to, and I think it’s good to have someone who’s familiar with the agency who can kind of get, sometimes you can kinda, when you give information you’re truthful, you’re upfront. You’re also trying to shape what you provide and how you present information and have a lot to do with how the citation comes out. And so, that’s important. And then you have the informal conference and while it’s informal, I think a lot of folks have the misimpression that just because it is informal, that it should be treated informally. You may have an informal demeanor about you, but you need to be very well prepared. You have to know your legal defenses, you have to know what evidence they would probably bring against you, the likelihood of their winning you. And I like to go in with basically a script of who’s going to say what, and it may sound casual and it may seem informal, but it is very, very well-prepared. And I’m speaking to the legal issues that the area director will recognize in that conversation and then reconsider the citation in light of the arguments made. But you don’t just show up and say, here are all my documents. What will you give me? Who plays poker by showing your hand and saying, do I win? You don’t do that. You have to play your cards with skill and so I do emphasize that.
Belinda: That sounds like some very timely advice for employers, especially in light of the fact that you mentioned earlier about the incoming administration looking to increase the size and the impact of OSHA. And so, I think employers who may have been a little bit asleep or taking a nap on the realities of having to face an onsite inspection or face and enforcement action, probably need to put some corresponding resources in place to make sure that they don’t find themselves in a compromising position. So that being said, what would you say are the top three things that we need to remember, or that employers need to remember in light of this new corner that we’ve turned, brought on by COVID-19?
Courtney: I think the most important, one of them is to stay on top of the science as it comes out from CDC, because where CDC goes, OSHA follows. And so, even, and I’m an OSHA lawyer, I don’t do civil liability. I don’t do wrongful death suits or things like that. I do know, however, that generally, if you get an OSHA citation, you’ll live to see another day. If God forbid, you’re faced with civil liability, that it could be much more damaging. And I say that to say, even if you’re following the science and you’re using best practices in good faith, even if you don’t technically get something wrong and you might get dinged with it. OSHA citation, it’s a whole lot better than landing in potential, a situation of negligence, especially if it, God forbid is a wrongful death suit. So that’s pretty critical. Another thing is to, I would say being prepared and also getting prepared now before OSHA knocks, it’s a gift. And so, if there are steps that you can take in terms of, what I like to do, what I do is fairly simple. I take the elements of a defense and I say, do we have those facts in place that would support my defense? And if not, how do we do that now? It’s almost like the putting yourself in a time machine going back in time and saying, okay, had I been cited by OSHA, what would I want my lawyer to be able to say? I’d like my lawyer to be able to say that I had my training done with this employee. It was documented, here’s the curriculum. It’s, you know, down the line. And we’re disciplining people, we have documented. Documents, we love documents. We hate recollections. We hate, gee, I think we hate that. We love, if you can document your case and prove you took the right steps in advance, we’re going to be okay and we’ll be able to establish a defense. So that’s two things. A third thing I’ll throw in there, which we didn’t discuss is vaccinations. And so, and that’s a big one right now.
Belinda: We might need to talk a little bit about that.
Courtney: Yes. And I just saw a survey from a supplier, so it may not be a scientific survey, but it said that 59% of employees surveyed by that supplier said that they approve of the employer mandating vaccines. And that’s very interesting. When a flu shot time comes around and we’re encouraged and enabled, but, you know, and we’re seeing that EEOC, with the guidance that just came out is actually saying, yes, employers do have a path to mandating vaccines in the workplace, but if they do mandate them and especially if they administer them themselves, that there are landmines to avoid. But right now, I mean, we’re getting called and we’re aware. We’re advising people on their policies and in advising, okay, how are they putting together their vaccination programs mandated or not? And how are they staying out of hot water with EEOC, you know under various acts. So, there a lot there to it. And that’s something that I think a lot of employers are jumping on it and getting solid advice. And there’s flexibility that you may need to have because the situation can change between now and a few months from now when more people are vaccinated. But getting that advice and thinking it through now is very important. If you haven’t started, this is the time to start with that.
Barbara: Very good. Thank you very much for this update. And we’ll have to see what happens in 2021, but Happy New Year to you and [inaudible 52:07] for being a guest on Today’s Workplace.
Belinda: Thank you. It was great talking to you.
Courtney: My pleasure. Thank you so much. Happy New Year.
Barbara: Thank you
Belinda: Happy New year.
Vinnie: Okay, baby.
Barbara: Yeah. Good.
Belinda: How about that? There’s [inaudible 52:24]. Happy Holidays.
Barbara: Love it.
Belinda: Vinnie and his filters
Barbara: I love it. I love it. I love it.
Vinnie: The power of small businesses to even large businesses to think that as Americans, we are relying on our employee system to figure out or be more reliable than government or somebody, so interesting. What an awesome piece of takeaway. I hope that’s if I’m getting it correctly, I mean like, we’re like, if this is where I get my money, then you’re responsible for all of it. So, you better make sure, it’s very interesting.
Barbara: It’s safe. Yeah
Vinnie: It really is. But thank you. That was perfect.
Belinda: Yes, it was
Barbara: And it is funny because, OSHA lawyers are a little bit like wage an hour. Lawyers used to be 20 years ago. Every firm had one. They were somewhere down the hall, nobody knew what they did. A client would call and say, well, I got this FLS a thing. Do you know anybody? And OSHA has been like that too. It’s like, wow. I think I know one somewhere that somebody somewhere that does it. And now all of a sudden 2020, OSHA!
Belinda: Right. Right. And Courtney’s like, can you just leave me with my regulations?
Barbara: [inaudible 53:51] the campaign and utter the words OSHA. OMG, they are talking about us. Oh my God.
Vinnie: I can see someone in college right now, listening to this and hearing your passion about what you do also great.
Courtney: Oh, wow. great.
Barbara: Its important and it’s taken a back seat in a lot of ways for a long time. And I hadn’t really thought about, you know, with a really pro-union kind of environment OSHA’s going to take on even a lot more importance. And I also appreciated what you said about self-reporting and how that’s always been a conflict of employers wanting to, even on, you know, maybe follow this, but even on post-accident, drug testing that’s been an issue because it’s like, they don’t want, in fact, I think it was OSHA. Somebody came out and said they didn’t want employers to do post-accident blood testing. So, lots of issues there, but this was great. And thank you.
Courtney: My pleasure.
Barbara: Vinnie, do you know when this is going to air? We had talked about Monday-
Vinnie: Monday. I actually had been making my edit notes as we talk and editors are on standby. So, to the editor watching this, thank you very much for your work,
Barbara: Alright? [inaudible 55:16] So you can forward that link to all your friends and family.
Courtney: There you go. This will be my Christmas gift to them.
Barbara: Take care. Bye-bye
Belinda: Thanks Courtney. Happy Holidays.
Courtney: Enjoy your holidays. Bye.