ILMA Compoundings - January 2021 - 33

that OSHA has sufficient tools to
inspect and cite employers. Following
the decision, four states (Virginia,
Michigan, Oregon and California)
implemented their own emergency
standards, which could serve as models
for federal enforcement. Most require
creation and implementation of a
written " pandemic plan " for confirmed
coronavirus exposure in a facility,
return-to-work policies, and educating
employees about the standard and
employer-specific practices. Lobbying
and lawsuits may be required to reduce
the penalties of noncompliance, as
some regulations like Virginia's include
hefty fines for failure to meet all of the
rule's requirements - both the scope
of the penalty provisions and rule have
already been challenged by small business groups over the burden it places
on employers trying to reopen.
On the campaign trail, Biden also
promised to increase whistleblower
protections at OSHA, and every state
standard created included specific
protections for worker complaints.
Structural changes at the agency will
likely mirror expanded anti-retaliation
rules under the Obama administration, and any emergency COVID -19
standard should be no different.
INFECTIOUS DISEASE STANDARD
Following the judicial opinion that
OSHA did not need an emergency
standard, several unions sued the

agency in October 2020 to force
completion of its infectious diseases
rulemaking. The rulemaking was
tabled in 2017 after seven years
of development and information
collection. The infectious disease rule
is designed to supplement OSHA's
existing bloodborne pathogens
standard, which applies to diseases
such as HIV and hepatitis rather than
infectious diseases. Unlike the bloodborne pathogens rule, the provisions
as drafted would apply primarily to
health and medical facilities. However,
it is possible that the lessons learned
from the pandemic could result in
expansion to essential infrastructure to
prevent disruptions in the critical first
days of an outbreak.
Based on documents submitted to the
Small Business Administration, the regulatory framework would not apply to
illness that can be adequately addressed
by existing public health guidance and
would not apply to every workplace.
Instead, workplaces like ILMA member
facilities would likely have reporting
requirements for infectious diseases and
a policy in place for handling employee
illness, such as staying home.
Additionally, the infectious disease
rule could allow quicker rollouts of
plans for future pandemics by giving a
concentrated arsenal of practices that
could be extended to other industries.
The most recent framing documents

before the rulemaking was dropped
aimed at the same guidelines that
OSHA and the Centers for Disease
Control and Prevention presented to
deal with COVID-19: administrative
and engineering controls, such as
plastic barriers, are listed as possible
requirements in the final rule.
REGULATION IMMINENT
The Biden administration will bring
increased enforcement of existing
OSHA regulations, rather than what
has been characterized as the laissez
-faire attitude of the Trump OSHA.
In an effort to separate itself as been
seen as taking positive action against
COVID-19,, emergency temporary
standards will likely be a big part of
the new administration's pandemic
plan, which may transition into more
permanent regulations to head off
future disease outbreaks. Reliance
on guidelines published by agencies
during the Trump administration
may no longer be sufficient to satisfy
overzealous enforcers, but building up
a record of efforts to maximize worker
safety could push inspectors toward
easier enforcement targets.
Levetown serves as associate
counsel to ILMA through
Bassman, Mitchell, Alfano
& Leiter Chtd. He may be
reached at 202-466-6502 or
mlevetown@bmalaw.net.

ADVERTISERS INDEX
COMPANY NAME

AD PAGE #

CONTACT

PHONE

EMAIL

Ergon, Inc.

4

Kathy Potts

601-933-3148

kathy.potts@ergon.com

Heritage - Crystal Clean

11

Matt Munz

317-474-9475

matt.munz@crystal-clean.com

484-362-0610

robert.plummer@hollyfrontier.com

HollyFrontier Lubricants & Specialty Products

Inside Front

Robert Plummer

Motiva

Back Cover

Colleen Murphy Smith 713-427-3392

colleen.smith@motiva.com

33
ILMA Compoundings - January 2021

Table of Contents for the Digital Edition of ILMA Compoundings - January 2021
