OSHA May Rely on Tattle Tales to Enforce COVID-19 Mandates

Sarasota, FL (WorkersCompensation.com) – If ever there was a time for employers to be transparent with their employees, this is it. With OSHA readying a requirement for employers to either mandate vaccines or have their employees undergo weekly testing, some have questioned how it will be enforced, as OSHA is not exactly teeming with inspectors.

“OSHA can hire a bunch of people to investigate or randomly audit worksites. That’s what they’ve done historically,” said Chuck Kable, Chief Legal and HR Officer for Axiom Medical. “What concerns me the most about this whole topic is the risk associated with whistleblower complaints because I suspect that will be the primary means by which employers are going to become targeted. I think whether you like it or not, the action or inaction you are taking today is sending a message to your team.”

One indication that OSHA may depend on workers to rat out their noncompliant employers is the fact that the agency is now advertising for a director of Whistleblower Protection Programs.

“They are hiring somebody to sit in that seat to manage whistleblower claims that come across from, I’m sure more than COVID, but certainly COVID is going to play a big part of that.” Kable’s comments came during a recent webinar on how the OSHA mandate may play out and what employers should do to prepare.

Presidential Mandate and Potential $700 Million Funding Hike

President Biden recently tasked OSHA with developing an Emergency Temporary Standard aimed at preventing the spread of the coronavirus in workplaces through mandatory vaccines or frequent testing. The agency this week sent a draft to the White House Office of Management and Budget.

The number of OSHA inspectors has declined in recent years; however, that could change if a proposal in Congress passes. It would provide OSHA with $707 million to spend through 2026. It’s expected OSHA would use the money to hire more investigators – and increase fines for noncompliant employers.

The bill has suggested increasing the maximum fine for willful or repeat violations of OSHA workplace safety rules from $136,532 to $700,000 and raising the serious failure-to-abate fine limit from $13,653 to $70,000.

“I think the magnitude of fines being discussed in the bill are material,” Kable said. “I don’t necessarily believe any business is going to be positioned to say, ‘ah, we’ll take the hit.’ I just don’t’ see that as being a rational business solution given the relative cost of having some level of compliance.”

These developments all point to the seriousness with which the administration is taking the issue. It could serve as a wake-up call for employers who have not taking action yet.

“When you think about the ‘wait-and-see approach’ I’d caution you on that,” Kable said. “What’s stopping you from at least having discussions and beginning to engage in an iterative process. … in the ETS for healthcare there is an obligation for employers to go through worksite risk assessment and to engage with employees around that effort, to talk to employees.”

What to Do

Based on the existing healthcare ETS and recent OSHA publications, experts predict the upcoming ETS will include several key components for employers, such as:

• Physical barriers
• PPE, such as facemasks
• Mandatory vaccinations for employees depending on their risk levels. Those working from home, for example, may not need to be vaccinated.

Additionally, employers might be wise to undertake daily check-ins with in-office employees, where they are asked to identify if they have any signs of infection. “The point is not to keep people out, but make sure that when they show up they are not actively sick,” Kable said.

In developing their plans, employers are advised to think through a variety of issues. The type of testing to be conducted on those not vaccinated, where the testing would take place, whether it would be directly observed, and how the test results would be managed.

“If it’s a positive result, what do you do with that,” said Scott Cherry, DO, Axiom’s chief medical officer. “The employer is ordering the tests so they need a strong mechanism to manage the result because there is a lot of liability if there is a positive result but [the worker] does not get any type of counseling or addition plan, especially if they end up getting a severe disease.”

Employers might also want to think about potential spillover into the workers’ compensation system. While infectious diseases established outside the workplace were not considered work-related in the past, COVID-19 has changed that dynamic.

“With this, moving forward, undoubtedly the discussion or the adjudication of work-relatedness will be much more complex,” Cherry said. “I think a great proactive measure for companies is to have a very robust policy and actual practices that you could show an adjudicator in workers’ compensation that it’s more likely than not that their employee may have gotten COVID outside the workplace than in the workplace. … Sometimes there’s different buckets or leadership in the companies that deal with risk, vs. safety, vs. health, but having a holistic approach about risk is really the key, I think, as well."

Working with Employees

In addition to the threat that employees may become whistleblowers, unhappy workers are also more likely to leave in the current environment. That’s yet another reason for employers to collaborate with their employees.

“When you’re dealing with a labor force that’s highly active in the way we currently see, you can’t put yourself in the position of saying, ‘I don’t care what they do.’ It used to be, ‘where are they going to go.’ We’re not in that place anymore,” Kable said. “For businesses that need people, everything you’re doing is sending a message about whether you value your workforce.”

The speakers suggest employers take steps to think about and address the risks in the workplace and let employees know that you are doing so, how, and that they are looking out for their employees’ safety. Up to this point, businesses have already taken a number of actions to protect their workers and their businesses. The speakers suggest employers continue to do that, working with their employees and documenting what they are doing.

“The bottom line is you’ve got to come up with an approach and communicate it with your folks,” Kable said. “You cannot get away with not communicating that. It’s going to serve you well. They’ll see you doing something, respect that and will help you.”

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