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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
exposure to people with suspected or confirmed COVID19. Both of these elements would likely require expert witness testimony specific to conditions in this particular workplace, and it may be difficult to establish that each layer of protection necessary to comprehensively protect employees would have materially reduced the hazard depending on the facts of the specific instance.
Further, even where OSHA
establishes a violation of the General Duty Clause, the employer is under no obligation to implement the precise feasible means of abatement proven by OSHA as part of its prima facie case.
Cyrus Mines Corp., 11 OSH Cas. BNA
1063, 1982 WL 22717, at 4 OSHRC
No. 76616, Dec. 17, 1983. Thus, even in cases where OSHA prevails, the employer need not necessarily implement the specific abatement measures OSHA established would materially reduce the hazard. The employer could select alternative controls and then it would be up to OSHA, if it wished to cite the employer again, to establish that the recognized hazard continued to exist and that adding physical distancing or barriers, for example, could materially reduce the hazard even further.
Finally, there are some crucial requirements in the ETS that OSHA
would have difficulty enforcing under the General Duty Clause. Of particular note, OSHA is adopting provisions in the ETS that require paid time for vaccination and recovery from vaccine side effects, and removal of COVID19positive employees and other workers exposed to them from the workplace and payment of salary for employees who are removed medical removal protection, or MRP. These provisions are critical to protecting workers because they facilitate vaccination, which is the preferred means of protecting workers exposed to COVID
19 hazards, and removal of infected employees and their close contacts as soon as the employer knows they have COVID19. Additional discussion of the importance of these provisions can be found in Section V. Need for the Specific Provisions of the ETS. While it might be possible for OSHA to establish the value of vaccination as a protective measure and the need to remove known infected employees in a General Duty Clause case, it is highly unlikely that OSHA could require payment to those employees, or other measures to encourage employees to get vaccinated or to let their employers know when they test positive for COVID19. Rather, paid leave for vaccination and MRP are measures better implemented through
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OSHAs statutory authority to promulgate standards. Standards are forward-looking and can be used to create a comprehensive network of required, and in this case of layered, worker safety protections. The ETS
creates just such a network, and vaccination and MRP are important layers of that approach.
The ETS Will Permit OSHA To Achieve Meaningful Deterrence When Necessary To Address Willful or Egregious Failures To Protect Employees Against the COVID19 Hazard As described above, in contrast to the broad language of the General Duty Clause, the ETS will clarify what exactly employers are required to do to protect employees from COVID19-related hazards, making it easier for OSHA to determine whether an employer has intentionally disregarded its obligations or exhibited a plain indifference to employee safety or health. In such instances, OSHA can classify the citations as willful, allowing it to propose higher penalties, with increased deterrent effects. Early in the pandemic, shifting guidance on the safety measures employers should take to protect their employees from COVID19 created ambiguity regarding employers specific obligations. Thus, OSHA could not readily determine whether a particular employer had intentionally disregarded obligations that were not yet clear. And, even as the guidance began to stabilize, OSHAs ability to determine intentional disregard or plain indifference was difficult, for example, when an employer took some, but not all, of the necessary steps to sufficiently address the COVID19
hazard. Given the current understanding that multiple layers of protection are necessary to adequately protect workers from COVID19, an ETS will ensure that employers have clearer notice of their obligations. This will allow the agency to take appropriate steps to redress the situation where an employer has intentionally disregarded the requirements necessary to protect employees from the COVID19 hazard, or has acted with plain indifference to employee safety.
Further, OSHA has adopted its egregious policy to impose sufficiently large penalties to achieve appropriate deterrence against bad actor employers who willfully disregard their obligation to protect their employees when certain aggravating circumstances are present, such as a large number of injuries or illnesses, bad faith, or an extensive history of noncompliance.
OSHA Directive CPL 0200080
October 21, 1990. Its purpose is to
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increase the impact of OSHAs enforcement ability. This policy uses OSHAs authority to issue a separate penalty for each instance of willful noncompliance with an OSHA standard, such as each employee lacking the same required protections, or each workstation lacking the same required controls. It can be more difficult to use this policy under the General Duty Clause because the Fifth Circuit and the Occupational Safety and Health Review Commission have held that OSHA may only cite a hazardous condition once under the General Duty Clause, regardless of its scope. Reich v.
Arcadian Corp., 110 F.3d 1192, 1199
5th Cir. 1997. Thus, even where OSHA
finds that an employer willfully failed to protect a large number of employees from a COVID19 hazard, OSHA likely could not cite the employer on a perinstance basis for failing to protect each of its employees. A COVID19-specific ETS will clarify the permissible units of prosecution and thereby make clear OSHAs authority to separately cite employers for each instance of the employers failure to protect employees and for each affected employee, where appropriate.
By providing needed clarity, the ETS
will facilitate willful and egregious determinations that are critical enforcement tools OSHA can use to adequately address violations by employers who have shown a conscious disregard for the health and safety of their workers in response to the pandemic. Without the necessary clarity, OSHA has been limited in its ability to impose penalties high enough to motivate the very large employers who are unlikely to be deterred by penalty assessments of tens of thousands of dollars, but whose noncompliance can endanger thousands of workers. Without a willful classification or a substantially similar prior violation, the maximum penalty for a serious General Duty Clause violation is $13,653, regardless of the scope of the hazard.
The General Duty Clause Provides Incomplete Protection at MultiEmployer Worksites Finally, the General Duty Clause has limited application to multi-employer worksites like hospitals, as it cannot be used to cite an employer whose own employees were not exposed to a hazard even if that employer may have created, contributed to, or controlled the hazard.
See Solis v. Summit Contractors, Inc., 558 F.3d 815, 818 8th Cir. 2009
Subsection a1 the General Duty Clause creates a general duty running only to an employers own employees,
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