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To Understand Enforcement of the New OSHA ETS, We Need to Understand Whistleblowing

The new Occupational Safety and Health Administration (“OSHA”) emergency temporary standard mandating various COVID-19 policies and procedures for employers with at least 100 employees (“ETS”) has an uncertain future in light of recent legal challenges. Despite these uncertainties, many employers are preparing to comply with the ETS on the assumption that its December 6, 2021 policy deadline may indeed take effect. Assuming that the ETS is implemented, employers may wonder how it will actually be enforced. OSHA is already short-staffed and cannot hope to inspect all employers covered by the ETS. Instead, OSHA will need to rely upon employees blowing the whistle on their employers’ non-compliance.

In general, OSHA inspects employers for compliance with its regulations on either a “programmed” or “unprogrammed” basis. Under the former, employers are selected based on either an agency targeting plan or an emphasis program. Under the latter, OSHA would select an employer for inspection in response to an employee complaint or a reported injury or accident.

In order to target employers where violations may exist, OSHA may conduct programmed inspections of those employers that fall into one of the industries identified in OSHA’s July 7, 2021 National Emphasis Program for COVID-19 (which generally includes the healthcare, meat processing, retail store, and restaurant industries, among others). That would cover thousands of worksites, and OSHA cannot inspect them all.

The lion’s share of employer inspections will likely instead be triggered by employee complaints, either in the form of complaints that an employer has failed to comply with some aspect of the ETS, or that the employer has retaliated against an employee because of a protected activity (e.g., making an internal complaint regarding ETS compliance).

In order to mitigate risks related to OSHA inspections or citations for ETS non-compliance, employers would be wise to prepare their ETS-mandated protocols now, so that they are ready to comply if and when the ETS goes into effect. They should also be sure to brush up on their procedures related to the proper handling of employee safety complaints. Key to both of these goals is effective communications. First, employers must communicate their policies clearly, so that employees are on notice of the expectations that the policies create. Second, employers need to make sure employees have a method to raise concerns about the employer’s compliance with the ETS before the employee feels the need to call OSHA.

For those interested in learning more, a panel of V&E labor and employment attorneys, including myself, will be discussing the ETS, and other requirements related to COVID-19, at our upcoming webinar, Returning to work: Navigating Vaccination, Testing and Masking Requirements. You can register to attend the event here.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.