By Brent I. ClarkJames L. Curtis, Mark A. Lies, IIAdam R. YoungA. Scott HeckerPatrick D. Joyce, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: On June 28, 2021, OSHA published a Compliance Directive, DIR 2021-02 (CPL 02), covering inspection procedures and enforcement policies for the Emergency Temporary Standard for COVID-19. The new directive sheds light on OSHA’s thought process in enforcing new provisions of the ETS, including the controversial medical removal payment provision. OSHA’s intent is to aggressively enforce the regulation, giving consideration to potential punitive damages or referral to OSHA’s Whistleblower Protection Program for certain infractions.

As we blogged about here, OSHA previously issued its COVID-19 ETS which went into effect on June 21. On June 28, 2021, OSHA issued Compliance Directive 2021-02 that covers inspection procedures for Compliance Safety and Health Officers in enforcing the ETS. The Directive establishes OSHA’s field inspection and enforcement procedures designed to “ensure uniformity in enforcing the ETS when addressing workplace exposures to SARS-CoV-2.”

The new inspection procedures shed some light on how OSHA plans to enforce the ETS, including the controversial medical removal requirements regarding maintenance of pay and provision of paid leave. Namely, OSHA has been directed to issue “Serious” citations as a matter of course if an employer does not pay an employee their regular rate of pay when working remotely or in insolation as part of a medical removal. As such, this could mean that subsequent infractions of employers not providing appropriate benefits to employees could be cited as a “Repeat” citation subject to a $136,532. The Compliance Directive also considers punitive damages as a possible remedy under OSHA’s whistleblower statue, Section 11(c). Compliance Officers are encouraged to refer cases to the Whistleblower Protection Program if they suspect retaliation.

In terms of determining compensation, the Compliance Directive permits some leeway to Compliance Officers. Namely CSHOs are directed to “determine whether the employer is appropriately compensating employees who are medically removed due to COVID-19. The determination regarding compensation for medical removal may depend on various factors including the size of the company, other sources of compensation to the employee, and payroll records.”  As such, it may be that an employer’s careful consideration of distributing existing benefit programs may “offset” the pay provisions.

In issuing citations, Compliance Officers are directed that costs accrue until payment, including back wages, insurance premiums and the like and, as an example, encourage Compliance Officers to draft citations that indicate the employee’s regular rate of pay, time worked per week, and dates when payment should be made, less customary deductions when the employee was required to work remotely due to COVID-19 exposure.

The Compliance Directive further directs Compliance Officers to be cognizant of the shift in employees’ incomes due to the pandemic and urging that Compliance Officers “take extra care to determine current wages.” OSHA directs its CSHOs to interview employees with similar job titles and seniority to determine the proper wages to be paid and consult an OSHA whistleblower protection investigator to determine how to calculate the amount owed to employees. Employers should be careful to analyze employee payment, to ensure no retaliatory intent could be inferred from benefits provided during medical removal. The Compliance Directive also notes that another factor in determining pay should be whether the employees would receive a bonus during the time period or medical plan.

The Compliance Directive makes clear that OSHA intends to aggressively enforce the new paid leave provisions of the new ETS, including issuing Serious citations, considering potential for punitive damages and referral to OSHA’s whistleblower protection program. Employers should consult experienced counsel to understand their compliance obligations with regard to these new provisions in order to minimize their liability.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.