OSHA's next COVID enforcement may be less complicated

The U.S. Supreme Court, in a 6-3 ruling along ideological lines, in January struck down the Occupational Safety and Health Administration's proposed vaccination mandate for private businesses with 100 or more employees.

The news was met with sighs of relief from the rubber and plastics industries where many businesses were struggling to work out how they were going to control a situation they had very little control in.

"When the mandate came in to play, that was astronomical," said Phillip Walker, an occupational health and safety consultant and owner of Alert Safety Technologies. "And the potentials for noncompliance with that was catastrophic. It had catastrophic potential."

Financial responsibilities and medical gray areas aside, employers worried they would lose employees who refused to comply with the mandate. It was a factor they feared would compound the labor shortage already plaguing the industry.

Walker has had conversations with employees who refuse to be vaccinated and those who have threatened to find work elsewhere should the company they work for implement vaccine mandates. It's easy to see the passion on both sides of the issue, he said.

"There is more than a Webster dictionary controversy over it," Walker said. " … There are so many personal, heart-felt, gut-felt feelings toward the vaccine and the whole situation."

While it's unclear how, exactly, OSHA will move ahead in the wake of the Supreme Court ruling, Aaron Goldstein, a partner in the international law firm of Dorsey & Whitney LLP, suspects the administration will establish guidelines and mandates that target specific types of workplaces or settings most at risk for spread of COVID-19.

Walker thinks OSHA's next step will be less complicated. He believes that the administration will lean more heavily on its general duty clause, charging employers with maintaining safe work environments and fining those who fail to do so.

"What this pandemic has done is shed a light on (what safety encompasses)," Walker said. "Before, when we would talk about occupational safety, it was machine guarding, electrical safety, the right gloves, steel-toed boots and safety glasses. Never did we pay attention to the hygienic side of it."

Walker believes that OSHA will change that by focusing more heavily on the health-related safety issues moving forward, approaching them from a sanitation perspective and financially penalizing companies that fail to meet reasonable sanitation standards.

"When there is something serious that needs attention, how else are they going to force somebody to make corrections than to hit them in the pocketbook?" Walker said. "OSHA can hit you in the pocketbook and they cite the general duty clause."

Walker believes that OSHA will approach sanitation of workplace spaces much like health departments approach restaurant evaluations. In the past, it was rare to see a manufacturer cited for uncleanliness in the workplace, Walker said, but it was easy to find restaurant citations ranging from minor to major infractions.

It's possible that manufacturers, like restaurants, will face regular scrutiny for cleanliness in addition to the more traditional safety measures.

While more stringent hygenic expectations may feel overwhelming, Walker contends it won't be for companies that understand health and safety has less to do with company policy and more to do with company pillars.

"Safety, in my book, is not No. 1. Safety is a value. Safety is a culture. Safety is personal," Walker said. "Anybody who says 'safety is No. 1' or 'safety first,' well OK you just put a number in front of it and now you are back to [prioritizing it]. There is no room for that. When you have room for that type of shifting you have to re-evaluate. But if [safety] is a part of your culture, if it is a value and it is personal then a lot of things change and things just flow together."

That approach, coupled with the common-sense steps that protect individuals from the spread of COVID-19 — wiping down common surfaces after every use and establishing better capacities for conference rooms and lunch rooms, for instance — will give companies the ability to best protect their workers and avoid any fines that could result.

"When COVID first hit, much like everybody else, it was survival mode [for companies]," Walker said. "A lot of this stuff we were being told to do was wear a mask if you're sick or have a cold, and the No. 1 thing we were telling people to do was clean and keep high-touch surfaces clean and wash your hands. As a health and safety professional, I almost had a reality check. Why weren't we doing this for the [seasonal] flu?"

When safety is part of company cultures, those COVID routines will become best practices that last long after the pandemic ebbs, Walker said, protecting employees and communities in the process.