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OSHA Rolls Out Biden-Ordered Virus Protection Program

On March 12, in direct response to a January executive order from President Joe Biden, the Occupational Safety and Health Administration launched an initiative to boost its efforts to protect workers at the highest risk of contracting COVID-19 on the job.

OSHA said it will focus its inspection and enforcement efforts on “companies that put the largest number of workers at serious risk of contracting the coronavirus,” while protecting workers against retaliation for logging complaints about those risks through the new national program. 

The program comes after Biden issued an executive order on Jan. 21, saying, “Ensuring the health and safety of workers is a national priority and a moral imperative.” He added that health care and other essential workers, “many of whom are people of color and immigrants, have put their lives on the line” during the pandemic.

Jim Frederick, the agency’s principal deputy assistant secretary, said in a statement, “This program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure.”

The program adds vigor to OSHA’s oversight of “high hazard” industries that expose the highest number of workers to “serious risk,” including hospitals, assisted living centers, nursing homes, and other health care and emergency response providers treating COVID-19 patients. OSHA will also conduct both new inspections as well as follow-ups of work sites inspected in 2020 to make sure that potentially hazardous conditions have been corrected. OSHA’s own compliance safety and health officers will have “every protection necessary” for the inspections,  the agency said. 

Additionally, according to the memo, workplaces or settings with high numbers of coronavirus-related complaints or cases will come under greater scrutiny, including correctional facilities, meatpacking plants, poultry processing plants, and grocery stores. 

OSHA will distribute anti-retaliation information during inspections, providing additional outreach opportunities for would-be tipsters and “promptly referring” retaliation allegations to the U.S. Department of Labor’s Whistleblower Protection Program.

The agency has stated that the program would remain in effect for up to a year, with the flexibility to amend or terminate the program as the pandemic wanes. While 28 states and territories have adopted their own state-specific OSHA-approved protections for employees and implemented similar enforcement programs, the agency added that it “strongly encourages” the remaining states to adopt the federal program.

 

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Paycheck Protection Program Loan Forgiveness: Mandatory OSHA Compliance

Employers are now potentially eligible for another round of Paycheck Protection Program (PPP) loans through the U.S. Small Business Administration (SBA). The SBA PPP loan application requires that they certify that they are, to the best of their knowledge, “in compliance with the applicable OSHA requirements, and will remain in compliance during the life of the [PPP] loan.”

This language suggests that failure to abide by the Occupational Safety and Health Act (OSH Act) requirements could impact a borrower’s eligibility for loan forgiveness.  The SBA issued an interim final rule regarding loan forgiveness requirements on Feb. 5, 2021. While there is presently no sign that the SBA will independently investigate compliance with Occupational Safety and Health Administration (OSHA) regulations, the SBA could look to OSHA’s investigative findings and/or citations to determine employers who have not been compliant. 

Overview of OSHA Citations

Citations from OSHA are classified as the following: willful, repeat, serious, other-than-serious, and other

As discussed further below, employers should be aware of OSHA’s citations and how they relate to COVID-19. Even though OSHA has not codified a COVID-19-specific OSHA standard, it has still issued citations to employers for failure to meet OSHA standards relating to personal protective equipment (PPE) availability, training, and use, as well as general workplace safety protocols to address COVID-19.

  • Willful violations are defined as violations in which the employer either knowingly failed to comply with a legal requirement or acted with plain indifference to employee safety. Willful violations are the most severe and carry the heaviest penalties and greatest liability exposure, including potential for individual liability. 
  • By contrast, other-than-serious citations, the least serious citation issued by OSHA, are typically issued for administrative or recordkeeping violations. Even though other-than-serious citations do not result in the highest of the monetary penalties, such administrative and recordkeeping requirements nevertheless fall within the scope of the PPP application’s certification of OSHA compliance.

Willful Violations

Under the direct language of the application certification, which requires compliance “to the best of the employer’s knowledge” the most obvious risk area for employers is if OSHA ascertains that an employer engaged in deliberate violations of its policies. A willful violation is one that, by definition, contradicts the obligatory PPP loan attestation. Willful violations could arise in a number of circumstances. For example, if an unsafe and unhealthy workplace circumstance is brought to the attention of the employer by OSHA, an employee or worker, and the employer intentionally overlooks it, then the employer may be cited for a willful violation. Now, employers may run afoul of the PPP certification if they do not promptly correct or remediate unhealthy or unsafe workplace conditions.

Repeat Citations

Employers cited for a repeat offense during the life of a PPP loan would be at greater risk for SBA rejection of their loan forgiveness application. OSHA may issue repeat violations when an employer is cited for “the same” or a “substantially similar condition” to the preceding violation. Importantly, when considering whether a repeat citation is justified, OSHA has a five-year look-back period and in some cases longer, according to certain courts. Consequently, if an employer has a prior citation on its record from OSHA, and receives a citation for a “substantially similar” condition during the life of the PPP loan, the employer’s eligibility for loan forgiveness may be in jeopardy. Employers should review their previous OSHA citations, if any, to ensure that repeat violations do not arise.

COVID-19 Protocols

OSHA has issued substantial guidance for employers to address COVID-19 concerns in the workplace. Failure to implement recommended safety protocols per OSHA guidance exposes employers to OSHA findings based on violations of the General Duty Clause. Therefore, if an employer has no processes in place for social distancing, workplace sanitization and cleaning, respiratory PPE and related training, other personal protective equipment, COVID-19 written policies, and procedures, for example, and it receives a violation from OSHA for those health and safety violations during the life of the PPP loan, then the employer’s ability to obtain loan forgiveness from the SBA may be impacted and possibly denied.

Employers should continue to monitor SBA guidance as well as the guidance from OSHA.

Highlights

  • The U.S. Small Business Administration, which administers Paycheck Protection Program (PPP) loans and the forgiveness of those loans, issued an interim final rule last month, which addresses PPP loan forgiveness requirements.
  • The interim rule does not address a buried provision in the PPP borrower application form, which requires applicants to certify compliance with Occupational Safety and Health Administration (OSHA) standards and regulations for the life of the PPP loan.
  • PPP borrowers should be diligent in their compliance with OSHA’s standards and requirements to ensure that PPP loans are waived.

 

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OSHA’s 10 most violated regulations for 2020

For the 10th successive fiscal year, “Fall Protection – General Requirements” is the OSHA’s most frequently cited standard. A preliminary list of the top 10 most violated standards was presented by Patrick Kapust, Deputy Director of OSHA’s Directorate of Enforcement Programs during an exclusive webinar on Feb. 26th. 

Although multiple standards swapped positions, the standards that make up the Top 10 remained unchanged from FY 2019. Of note, a newcomer emerged among the top five: Ladders, which ranked sixth in FY 2019, rose one spot. Additionally, Respiratory Protection climbed to third from fifth, while Lockout/Tagout fell two spots, dropping to sixth from fourth.

The complete list:

  1. Fall Protection – General Requirements (29 CFR 1926.501): 5,424 violations
  2. Hazard Communication (1910.1200): 3,199
  3. Respiratory Protection (1910.134): 2,649
  4. Scaffolding (1926.451): 2,538
  5. Ladders (1926.1053): 2,129
  6. Lockout/Tagout (1910.147): 2,065
  7. Powered Industrial Trucks (1910.178): 1,932
  8. Fall Protection – Training Requirements (1926.503): 1,621
  9. Personal Protective and Life Saving Equipment – Eye and Face Protection (1926.102): 1,369
  10. Machine Guarding (1910.212): 1,313
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Tuas fire: The Danger of Potato Powder, Sugar, and Flour

 

In Singapore, Potato starch powder has been identified as the source of an explosion at an industrial building in Tuas on Wednesday (Feb 24), which left seven injured and three workers dead.

Commissioner for Workplace Safety and Health (WSH) Silas Sng on Thursday stated that preliminary investigations have found that the incident at 32E Tuas Avenue 11 was caused by “a combustible dust explosion”, and that the dust in this was “potato starch in powder form”.

Stars Engrg- the company at the site  – uses potato starch powder to manufacture its products, said Mr. Sng.

Potato starch powder – or other dust particles, including commonly available ones such as sugar or flour – can be an explosion hazard.

THE “DUST EXPLOSION PENTAGON”

The Ministry of Manpower (MOM) circular was issued by the Occupational Safety and Health Division in July 2015. According to this, fine particles can combust when all five elements of a “dust explosion pentagon” are present: 

  • Fuel (the combustible dust), 
  • air, 
  • dispersion,
  • confinement,
  • an ignition source.

(Graphic: MOM)

Mr. Sng, who is also director of the Occupational Safety and Health Division also said that “It is a known scientific fact that … materials in powder form can be explosive when it is dispersed over the air. Especially when they are in an enclosed environment … with a source of ignition, you get an explosion, as you see in this case here.”

According to the MOM circular, such dust explosions happen “often but not always in an enclosed location” – the fine particles that are suspended in air experience “rapid combustion”. What differentiates dust explosions from fires associated with a mass of solid material is the size of the combustible surface area.

“A mass of solid combustible materials will burn relatively slowly due to the limited surface area exposed to the air. However, when the same solid is split into a fine powder and dispersed as suspended particles in the air in the form of a dust cloud, the result will be quite different”.

“In this case, the surface area exposed to the air is much larger, and if ignition occurs, the whole of the cloud may burn very rapidly. This results in a rapid release of heat and gaseous products, causing pressure to rise.”

THINGS THAT ARE COMBUSTIBLE IN DUST FORM

Materials that are combustible in dust form include organic matter, such as sugar, corn starch, flour, peat, soot, and cellulose pulp.

Various types of chemical particles are also combustible, including ascorbic acid (Vitamin C) and sulfur.

Metals such as aluminum, bronze, magnesium, and zinc can also catch fire in powder form, as can plastics such as resins, melamine, and polymers.

(Source: MOM)

HOW TO PREVENT DUST EXPLOSION

According to Mr. Sng, “Over time, the dust can accumulate in the environment, especially if the ventilation or the housekeeping is inadequate.”Combustible dust can be generated when the powder is transferred, for example from a bag into a mixer. As such, dust control is one of the measures recommended to minimize fire risks.

The MOM circular suggests having local exhaust ventilation systems that “can capture clouds of dust effectively to prevent unnecessary dispersion of combustible dust where people are at work”.

The ministry also recommended housekeeping and maintenance of a dust collection system and filters, with vacuuming or wet cleaning methods favored over sweeping methods as “sweeping would tend to cause more dispersion of dust particles.” 

Such a system can be implemented at suitable locations where materials are loaded, unloaded, or transferred, while “taking care not to have an extensive ducting network, which can cause burning materials to spread following an explosion” within the ventilation system, it said.

To prevent ignition, MOM stated that flame-proof equipment or non-sparking tools should be used in areas where combustible powders are being handled.

Operators should also ensure effective bonding and grounding of powder handling units to prevent the build-up of electrostatic charges, which may lead to ignition when inadvertently discharged.

Inert gases such as nitrogen can be used to reduce or eliminate the presence of oxygen in the atmosphere.

MOM recommended other measures as well,  such as providing explosion relief to safely vent the energy in the event of an explosion, installing detectors for sparks or glowing materials, and isolating areas handling combustible dust from other parts of the workplace.

On top of providing training and refresher courses on combustible dust hazards, employers must also equip workers with the right personal protective equipment such as fire-retardant clothing and safety shoes.