Jon Greiner, Basin Safety Consulting

Jon Greiner

I began this publication by winking at the fact that many in the industry look at safety regulations as a “necessary evil” (true, the feeling isn’t typically that strong). My thought was, if a lot of people think safety stinks, how can we change that? Some safety requirements are onerous, extra, duplicated and we can’t accept this blindly. We should always be looking at ways to improve safety, just as we do operations. Still, beyond having a baseline for controls to prevent injuries, I believe we can use safety requirements and practices to our advantage to improve quality, efficiency, even profitability (no one makes money if workers are in the hospital).

This week, and I say this unironically, safety does stink. OSHA has been conscripted in the strategy to medically protect America, leaning on the fact that if you can’t get people to do something voluntarily, threaten the people who sign their paychecks. For years I have defended safety regulations, understanding their purpose and intent. The recent ETS (Emergency Temporary Standard) that is on its way to becoming a CFR (Code of Federal Regulation) is not designed to protect workers, but to punish the employer for worker’s declinations, rather than allowing them to assume the risk and responsibility for them.

As I detailed in a previous article, this is a drastic shift from the focus of OSHA since its inception in the early 70’s. There are other vaccination requirements and declinations (Hepatitis B for healthcare workers, for example) and employees have been able to decline these vaccinations, stating they accept the responsibilities for declining the vaccination. Also, it specifically circumvents state laws regarding vaccinations.

Fortunately, the ETS has been halted in several courts, citing “grave statutory and constitutional issues” (most notably in the fifth circuit). Most legal firms, however, are advising employers to prepare to implement these changes. This includes recordkeeping of vaccination status, investigating “workplace” infections, providing paid leave for workers to receive vaccination, its side effects, and hefty fines for failing in any of these areas or falsifying data (I’ve highlighted their summary in a downloadable document here).

North Dakota has limited the liability for companies in regards to workplace transmission unless done on purpose (C32-48). The ETS doesn’t specifically reference these indemnity rulings, however this will get very costly to every tax payer, corporation, and court.

Perhaps the largest challenge to employers is the lack of guidance available from OSHA themselves. If you call and ask for direction about this ETS, they will not be very helpful. They cannot provide comment or guidance, at all. Many companies due to the lack of guidance and coordination are moving toward with a zero tolerance policy for lack of vaccination. GE and MSA to name a few, in some cases requiring subcontractors to do the same, or risk a loss of contract. This mirrors what the federal government is requiring of these same companies.

My recommendation isn’t just to sit back and watch. Provide thoughtful comment and thoughts on the impact of the regulation. I’m not saying it will have a large impact, or that they are interested in our thoughts (they provided only one day for comment on the temporary standard). The constitution, HIPAA, and labor rights aside, OSHA was established to “ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education and assistance”.

As a safety professional, I do not believe they are fulfilling the latter part of their purpose here. Setting standards in order to enforce policy is not in our workers best interest, and I believe all this has done is drive a bigger wedge between employers and the government as it relates to safety. OSHA shouldn’t be used as the tip of the spear for overreach, this is a dangerous precedent for future worker safety and confidence in their administration.

For now, all our industries can do is wait and be heard. To comment directly on the standard, click here.

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