What's next for OSHA after the failed vaccine mandate?
Safety Consultant with Sheldon Primus
What's next for OSHA after the failed vaccine mandate?
February 21, 2022
In this episode, Sheldon goes over what to expect now after OSHA's failed to get a vaccine mandate passed nationally. OSHA says: COVID-19 In order to determine whether the exposure occurred in the work environment or occurred away from work, the employer must evaluate the employee's work duties and environment. To address this issue the employer must follow the criteria in OSHA’s recordkeeping regulation at 29 CFR 1904.5 for determining work-relatedness. Because an employee can contract COVID-19 from an exposure at work or outside of the workplace, an employer whose employee has been hospitalized or is deceased due to COVID-19 needs to consider the following: • The type, extent, and duration of contact the employee had at the work environment with other people, particularly the general public; • Physical distancing and other controls that impact the likelihood of work-related exposure; • The extent and duration of time spent in a shared indoor space with limited ventilation; and • Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19. 4 CDC Close Contact Close Contact through proximity and duration of exposure: Someone who was less than 6 feet away from an infected person (laboratory-confirmed or a clinical diagnosis) for a cumulative total of 15 minutes or more over a 24-hour period (for example, three individual 5-minute exposures for a total of 15 minutes). An infected person can spread SARS-CoV-2 starting 2 days before they have any symptoms (or, for asymptomatic people, 2 days before the positive specimen collection date). The episode will help you coach your clients and workforce as to compliance with the General Duty Clause in the OSH Act 5(a)(1).
Keywords: OSHA, Vaccine mandate, Safety, EHS, Sheldon Primus, Sheldon, Primus, Safety Consultant, ETS, Emergency Temporary Standard, Subpart U, Healthcare, NonHealthcare, Compliance, compliance letter, General Duty Clause, violations, 5(a)(1), OSHA compliance, Safety FM, regulation, NIOSH, CDC, close contact, Joe Biden, Biden Administration, Donald Trump, Trump administration, US, government, politics, citations, Health, hazards, hazard control, engineering controls, administrative control, PPE 

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[00:00:14] spk_1: Yeah. Mm hmm. Welcome to the safety consultant podcast. I am your host, Sheldon Primus. This is the podcast where I teach you the business of being a safety consultant. And this week we are actually, we're going to have a single episode with me and we're going to go through a few things related to OSHA. And what do we do now that there is no vaccine mandate? What should we expect? So I'm not going to call this an ocean update per se, but it is good enough that we do need to figure out what's going on here because we need to be able to tell our clients also what's going on here. Right? So we are going to spend this episode to briefly go over What you can expect for COVID-19 regulations for OSHA. It's probably what you think. I don't know. Yeah. Could be. Yeah. So I'm going to go ahead. It's only going to be me today. So I'm going to go ahead and begin with this one because I really want to make sure that you're going to get a good understanding of what's going on here. So if you're not familiar what's happening with the USOC, they were going to do a mix of vaccine. It's easy for me to say, can I do a vaccine mandate and what this mandate was going to be was you had to have proof of vaccination for your employees. If you had 100 or more or for those people who had exceptions for some reason and they couldn't prove they were vaccinated. The second thing was there, the other compliance thing that would have been is that they would have had to have a weekly testing Now for COVID 19 and then come up negative every week. I at the time was kind of back and forth on that because truly for OSHA, it does take for them to say that they are protecting the american worker and their idea and the preamble was there protecting you against yourself and your coworkers, Not really yourself. You know, just a matter of statement, but honestly he was protecting you against the unknown of if you're co worker could be a possible vector for the virus. So therefore being vaccinated would have reduced that risk. So at that point, OSHA was trying to do what's called a specification standard. There's two big parts of the standards for OSHA. One would be a performance standard meaning when there's a rule and regulation, Osho says you got to do this follow this rule, how are you following? It's up to you. So that is a performance standards and you've got to figure out how to follow the rules. Whereas a specification standard and construction, let's say you're at an elevated height, six ft or more now, you know, you need fall protection. Fall protection could be personal fall arrest system could be guardrails could be a safety net but you need something at six ft. That's a specification standard because the six ft, lets you know you've got to do something. Same thing with silica exposure at 25 micrograms per cubic centimeters. It's an action level at that level. When you're measuring you see that there's silica level at this action level, you've got to start prepping and doing something to reduce that at 50 micrograms per cubic centimeters. Alright, we hit a magic number And that is your permissible exposure limit. Pl one pl is hit then. Now that is it can't go any further than that. So at that point, motions being specific about the compliance. So what they were trying to do with COVID-19 and the vaccine rule was there really going to be specific about how you're going to protect your worker from COVID-19 or you know SARS Covid two which is the virus that causes the disease. Covid 19. So that's really what we're talking about. So it got all the way up to the Supreme Court and in the Shadow Docket, the Supreme Court made a decision that says, hey went out with this. This one is definitely not good for or not in our belief system or however you know, you would paraphrase it but in the Shadow docket, Osho was denied. So with that denial, what are we going to do? What does she do? They're gonna go right back to what they did before. So what did they do before They considered it a general duty clause violation. five A 1. So that general duty clause violation is a big one. I call it the no better, you know better rule. So in the you know about a rule, OSHA just truly says that you have to make sure that you will protect your workers because you recognize the hazard and the hazard is exposing to your workers. It's reasonable to think that the worker is going to get sick or while seriously ill seriously sick in this situation or death and that you have a feasible way of making sure that this worker will not be susceptible to this disease or illness or whatever it is. In this point, it's going to be SARS Covid two. So now that's going to be what OSHA is going to go back to. Then go back to that regulation. There's already an existing national emphasis program in the us for COVID-19. So both healthcare and non healthcare. There is a national emphasis program. So that means that OSHA can now go through the facility especially if there's a complaint and now say that we're going to do a national emphasis inspection related to the complaints are related to. Um maybe even your numbers because OSHA has changed their mindset as they're not waiting for fatalities and catastrophes as much as they're seeing trending in your injury tracking application and that's the electronic record keeping for OSHA that Businessly have to put in some businesses if you are regulated under the 1904 OSHA rules for record keeping. But these businesses have to actually submit electronically the records on the OSHA summary log. And that's your 300 a form for you in the U. S. That are aware of that those that are not every year. OSHA says that you have to summarize by number How many people were injured, how many days away and a few other categories. And then this summary gets posted. Actually right now this is the time it goes posted February one and then comes down in May one. You're actually April 30. But you want to make sure you just give it that extra day May one and then go ahead and take it down. But this information is being held in a place where everyone could see your injuries from last year 2021. So now those people that have been submitting The injury logs three years in a row. Oh she could start seeing that you had increase in your injuries and by just to let you guys know, oh she is also going to be changing that. So don't be scared. They are changing that. So what they're doing is they're going back to the original intent of the rule before the previous administration in the U. S. They went a little lax on the rules and change some things regarding record keeping. I was just going right back to that and they're going to look for the 300 logs which has names and Specific situations. The 301 log which is like the first notice of injury And also the 300 a log. So armed with that information and Osha's new tactic and my ideas, they're going to see sicknesses, injuries, illnesses and from there they're going to move those things if you're three years, that's a trend of increased or more injuries, illnesses. So with that trend then now they know you could get a trigger an actual inspection. So in doing that and going back to the original thought in this episode, We've got the national emphasis program for COVID-19. So anywhere in the us, if there's going to be inspection, they could start an inspection From. Usually it's going to be a whistleblower complaint about your conditions for handling COVID-19. And in that case then OSHA has a complaint and a national emphasis program. So they're going to go and they're going to go through the facilities and they're going to start not only looking for a close contact and close contact is defined by the CDC through the National Institute of Occupational Safety and Health. NIOSH and that is OSHA has a research arm which is not a national institute, occupational Safety and Health and their research arm is housed in the Center for Disease Control CDC. So OSHA and CDC work hand in hand, especially through that agency. NIOSH. So you will have to go back to the CDCs definition of close contact and I got that here for you. So I'm gonna go ahead and give it to you CDC close contact through proximity and duration of exposure. So this means and I remember doing this one before, so you have to go back to a couple of episodes if you want to hear it even more detail, but Someone who is less than 6ft away from an infected person and I'll be lab confirmed or clinically diagnosed For a cumulative total of 15 minutes or more over a 24 hour period. And then they give you an example, for example three individual 5 minute exposures for a total of 15 minutes. So meaning if you got exposed to someone three times five minutes each and this person was diagnosed. So that means at work, they may not have had their diagnosis but day two, whatever it is, you find out, oh man Billy, he's got the Covid and he's got a positive test on that and you go back and you're thinking in your brain. Dude, I worked with Billy, I worked with him At least see him what three times a shift and when we're together we're together for like 10:15 minutes. Alright, that has established close contact and once close contact gets established and that is now saying according to this definition through the CDC that you now have a condition where this employee was exposed to SARS Covid two through another employee by the definition of close contact. And then the definition keeps going on and says an effective person can spread SARS Covid two starting two days before they have any symptoms. And then in parentheses it says or for asymptomatic people two days before the positive specimen collection date. So if it's sunday that this person had a positive um test or at least the Westman was collected there and then they got their test results a couple of days later. But at that time then this is saying that that person could have been spreading on friday. So sunday is the day that we've got the asymptomatic testing. If you would and then you're thinking saturday and friday. So at that point thursday to friday would be in the time you would think I had contact or exposure to billy and therefore I could get decoded. So that's what I was just going to be looking for for their their guideline on close contact. So with the guideline on close contact that's going to go right to The specification standard for COVID-19 only. Everything else is going to be a performance standard. So there's going through just again, we're talking about what what happens now and for you understanding what happens now now you can explain to your clients or if you are the safety consultant at your job and you just don't have that title A safety consultant and maybe safety officer or director of safety. What you're going to be thinking about is all right here is how oh she's going to regulate this thing. So they're going to go in and either it's going to be a complaint or it could be a national emphasis program and they're going to go in, they're going to look through the facility. They want to see if there is close contact as they're walking through. And that also counts for construction sites as well. Guys driving together from site to site. Close contact. There might be a scenario where they're all eating together in a certain area. Close contact. So at that point they're looking for some sort of spacing if you would. So here is the wording that OSHA is going to say. And I'm going to read this one coming from their preamble on truly Covid 19 in order to determine whether exposure occurred in the work environment or occurred away from work. The employer must evaluate the employees work duties and environment to address this issue and the employer must follow the criteria in OSHA's recordkeeping for determining work relatedness and I've done a bunch of episodes on record keeping. And just recently I finished a three part series on record keeping. So I tell you go ahead and subscribe to this podcast, Go back just properly what, 23 weeks ago and you're going to see the whole three part series on OSHA recordkeeping 2022. So I'm not going to go over that. You guys got a three part series to go through and then he also will go ahead and subscribe to the podcast. C I'm leading you to this podcast and once you do you're going to get yourself some good information. I love that information on the podcast. So go ahead and subscribe to that one. And so We're already talking about, it's going to address the following things you're going to get. And again, I'm going to go back to reading what I started with the COVID-19 And so they need to figure out work relatedness by 1904, section five Because an employee could contact COVID-19 from an exposure at work or outside the workplace, an employer whose employee has been hospitalized or is Dix East due to COVID 19 needs to consider the following. So here's the criteria for you to see if you could get cited for having close contact and cluster of workers really what it's going to boil down to more than just one. Here's the things you're gonna consider. Here's what the compliance officer is going to be looking for as well. The type and extent and duration of contact the employee had at the work environment with other people, particularly the general public. The general public, not only is it your work force, but also the general public, that means on a construction site you're thinking about your workers and then now the subcontractors workers and everyone else. Is that a thing? It is now truly truly a thing. So I hope I didn't mess with your brain, that was your brain, your brain blowing up there. It's it's truly I was just trying to think of all different ways. It's a specification, it's a performance, I should say not a specification performance you are going to have to consider and you're going to have to talk to subcontractors if you have some, if you have your host employer and you have a contract employer doing some work in your field and then it's also saying general public. So if you do have the general public coming in and out of your facility, these are all considerations that OSHA is putting in there. Alright, second bullet out of this points for consideration and this is taken again directly from OSHA physical distancing and other controls that impact the likelihood of work related exposure. So that's the second consideration. They're going to be looking forward in the inspection third, the extent and duration of time spent in shared indoor space with limited ventilation. So that's going to lead me to think that's the close contact CDC side that's going to be indoor, limited ventilation. So that's going to increase the likelihood of an airborne disease going from one person to the next. And then finally whether the employee had work related contact with anyone who exhibited signs and symptoms of COVID-19. So did anyone in there. If you were going to contact trace anybody who they had some sort of familiarity with some sort of interaction with Have COVID 19. So at that point all the conditions would have been met for OSHA to cite you. So they're not going to be signing a specific standard unless you're in the healthcare industry where they could cite subpart you in 1910. But for everyone else, They're going to go ahead and give you a violation in that five a one rule that I mentioned earlier. So that five a one role is going to be the thing that everyone is going to end up really thinking about and uh that is going to end up being your your citation. So you do not want to get that five a 1 violation at all. You're going to go ahead and coach your clients as to This is the way that you're going to avoid COVID-19. The mandate may have failed for vaccination but OSHA is not going to give up Citations can be expensive on this one. At one point they were averaging 13,000 each one. So I'm not too sure the new numbers, you can look that up on the ocean website, but right now it's still expensive. So now how you counsel your crew council, your contractors or your clients is use the guidelines. They just gave you, make them aware of it and then now that they're aware of it. You could then help them with some mitigation. Alright. That's it for me. So I am so glad that you guys are there with me. I know my days haven't always been monday releases. I've been trying to get used to my my new travel schedule. So thanks for bearing with me. But I haven't missed a week. I'm not missing you guys. So subscribe. So you know, if it's not exactly monday with a new episode that you know you're going to get one this week and I will give you a nice notification on your phone or the device you listen to me on right now. Go get him.

[00:21:20] spk_0: This episode has been powered by safety FM. The views and opinions expressed on this podcast or broadcast. Are those of the hosting its guests and do not necessarily reflect the official policy or position of the company. Examples of analysis discussed within the past hour are only examples. They should not be utilized in the real world as the only solution available as they are based on very limited and dated open source information, assumptions made within this analysis are not reflective of the position of the company. No part of this podcast or broadcast may be reproduced stored within a retrieval system or transmitted in any form or by any means mechanical electronic recording or otherwise without prior written permission of the creator of the podcast or broadcast. Sheldon