ILMA Compoundings - June 2021 - 41

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rule is redeveloped, the pandemic will
cause the standard to be expanded to
cover all employers. Alternatively, an
infectious disease standard limited to
health care during normal years could
form the basis of an expanded temporary
standard in future epidemics.
ENFORCEMENT
It is certain that OSHA will be hiring
and training new inspectors. Biden
promised to double the number of
OSHA inspectors, who take up to
18 months to train. Even though
hiring an additional 700 inspectors
right away is unlikely to happen,
businesses should start to see more
inspections under the Biden administration.
Already, the agency has begun
enforcing a 2016 anti-retaliation rule
that penalizes employers for retaliating
against employees for reporting workplace
injuries and illnesses, including
COVID-19 reports from workers.
The anti-retaliation rule formed one
facet of OSHA's recently announced
COVID-19 national emphasis program
to investigate high-risk and other
workplaces that receive coronavirus
safety complaints. Trump's OSHA
limited the anti-retaliation rule to
employer actions designed to penalize
workers, like drug testing after accidents,
unless it could be shown that it
was for a legitimate purpose.
Aside from an increase in federal
inspections and enforcement, Biden's
OSHA likely will muscle state OSHAs
to follow suit. The 22 state OSHA plans
are allowed to differ from federal standards,
so there is a question of how far
the federal agency will push conformity
with national rules. Some state plans
(such as California OSHA) already utilize
stricter standards, but more lax plans
(such as Iowa and Indiana) are likely to
be pressured to update their rules.
WHAT TO DO?
Barring substantial changes to OSHA,
inspections will follow the same
enforcement procedures as prior
administrations, albeit in higher
numbers. Some general tips:
1. OSHA's field inspection reference
manual is available online, and
tracking the document's steps for
conducting workplace inspections
THE D I FFERENCE I S CHEMI STRY.ª
should prepare a facility for the
majority of OSHA inspections.
2. OSHA inspectors may arrive
without notice, and they may be
turned away unless they present
a proper warrant; however,
inspectors likely will return with
a warrant and a less accommodating
attitude. Therefore, the
scope of the inspection should
be established upfront, and then
someone should accompany the
inspector and document what he
or she does.
3. It is a good idea to have all documents
that could be inspected
organized and easily accessible,
such as handy binders of safety
data sheets, training records and
the past three years of illness and
injury reports.
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.
41
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ILMA Compoundings - June 2021

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