Challenges to the Occupational Safety and Health Administration’s (OSHA) COVID-19 emergency temporary standards (ETS) and employer noncompliance with reporting requirements hampered the agency’s pandemic response, the U.S. Government Accountability Office (GAO) reported in a May 25 Congressional testimony.
In a written testimony submitted to the House Committee on Education and Labor’s Subcommittee on Workforce Protections, the GAO raised concerns about OSHA’s ability to respond to occupational health crises. The GAO’s account of OSHA’s response to the pandemic pointed out that:
- From February 2020 through June 2021, OSHA relied on voluntary employer guidance and existing health and safety and health standards for its COVID-19-related enforcement, often citing employers under the General Duty Clause of the Occupational Safety and Health Act, which requires large amounts of documentation.
- In June 2021, OSHA issued a COVID-19 ETS for healthcare that the agency no longer enforces, removing all but the emergency rule’s recordkeeping and reporting requirements in December 2021.
- OSHA issued a vaccinate-or-test ETS in November 2021 but withdrew it after the U.S. Supreme Court issued a judicial stay of the rule in January 2022.
The GAO previously estimated that between 2016 and 2018, 50 percent of U.S. workplaces did not report required injury and illness data, limiting OSHA’s ability to focus its enforcement resources. The GAO also noted that OSHA has limited options for encouraging compliance with the injury and illness reporting requirement or for penalizing noncompliance.
The GAO acknowledged that OSHA has a current rulemaking for an infectious disease standard that would apply in healthcare and other high-risk industries but pointed to earlier findings that it takes an average of more than 7 years to develop new OSHA standards.
The GAO provided the committee with a timeline of OSHA’s efforts to address workplace COVID-19 exposures:
- March 2020—OSHA released enforcement policies for agency inspectors and voluntary employer guidance after the secretary of health and human services issued a January 31 COVID-19 public health emergency.
- April 2020—OSHA published an interim enforcement response plan.
- January 2021—Incoming President Joe Biden issued an Executive Order directing OSHA to issue revised employer guidance, consider issuing an ETS, and launch a national emphasis program (NEP), and the agency issued its revised employer guidelines.
- March 2021—The agency issued its COVID-19 NEP focused on the inspection of high-hazard industries, including health care and meat and poultry processing.
- June 2021—OSHA issued its healthcare COVID-19 ETS and an ETS enforcement policy.
- July 2021—The agency issued a revised interim enforcement response plan.
- November 2021—OSHA issued its COVID-19 vaccinate-or-test ETS.
- December 2021—The agency announced it would withdraw the non-recordkeeping portions of the healthcare ETS.
- January 2022—OSHA withdrew the vaccinate-or-test ETS following a Supreme Court judicial stay of the rule.
From February 2020 through December 2021, OSHA received 18,401 COVID-19 complaints and referrals; 1,928 employer reports of severe injuries or illnesses; 1,427 reports of fatalities; and 3 reports of catastrophes. OSHA conducted 3,350 COVID-19-related inspections during the same period, citing 1,099 violations and issuing about $7.1 million in penalties, according to the GAO.
OSHA inspectors or managers in three of five area offices told the GAO that it was difficult to apply existing OSHA standards to COVID-19 cases because existing standards did not cover COVID-19 interventions like wearing a face covering. Agency inspectors and managers also reported difficulty in meeting the requirement to issue a citation within 6 months of a violation. Reported challenges included the large amount of paperwork required for a COVID-19 citation and the fact that inspectors sometimes learned of a fatality several months after it occurred.
Citations for General Duty Clause violations require substantial documentation, according to the GAO. Citations must satisfy these tests in OSHA’s field operations manual:
- The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
- The work hazard must be a recognized health or safety hazard that caused or was likely to cause death or serious physical harm.
- There was a feasible and useful method to correct the hazard.
The GAO also noted its earlier findings on employer noncompliance with OSHA’s injury and illness recordkeeping and reporting requirements. For example, in 2018, only an estimated 212,000 out of 459,000 establishments reported their required injury and illness data to the agency.
The GAO, formerly known as the General Accounting Office, is a Congressional audit, evaluation, and investigative office that supports Congress’s oversight of federal policies and programs.