Episode 9

Transcript

Mike Smith: Welcome to another episode of Frantz Ward podcast series, Shoveling Smoke. I'm Mike Smith, your host for today's podcast. As you know, earlier this year, we presented several podcasts talking to Frantz Ward lawyers about how the legal landscape might change under the new Biden administration. We covered healthcare, tax and employment issues. Today, we're going to continue on that course. As you know, President Biden spent a good deal of his campaign maintaining that he would improve the lives of blue collar workers, a message that he just reinforced in his statement to Congress. One area he's focusing on is workplace safety and the work of the occupational safety and health administration, or OSHA. And that's what we're going to discuss today.

 

Mike Smith: Here with me to give some perspective on what's going on in this area and what we can expect in the coming months is my partner, Christina E Niro. Christina is a member of Frantz Ward's labor and employment group and spearheads much of the firm's OSHA investigation and compliance activities.

 

Mike Smith: Christine is OSHA 30 certified and regularly advises employers about OSHA, including representing them during onsite OSHA inspections and informal settlement conferences, negotiating resolving OSHA citations and penalties, and defending employers at administrative hearings with the OSHA review commission and in related litigation. Christina also assists clients with the preparation and implementation of workplace safety programs.

 

Mike Smith: On the firm side, Christina chairs Frantz Ward women's initiative, which is committed to the recruitment, retention, promotion and mentoring of women attorneys through leadership, training, community networking and community involvement. Following a passion to eradicate child hunger and improve child education, Christine also sits on the boards of Children's Hunger Alliance in Cleveland Catholic Charities. Christina focuses their personal time on family. Most notably her six year old daughter, who's already honing her skills to become the next lawyer in the family.

 

Mike Smith: Hey Christina.

 

Christina E Niro: Hey Mike, how's it going?

 

Mike Smith: Good. Thanks for being here with us today.

 

Christina E Niro: Of course.

 

Mike Smith: Before we get going, can you tell us a little about Children's Hunger Alliance and their mission?

 

Christina E Niro: Absolutely. The mission really is simple. Help feed food in secure kids. It's a nonprofit it's focused solely in Ohio, which has real struggles with child hunger, which people might not be aware of. But one in four kids in Ohio doesn't know where their next meal is coming from. That's 700,000 children. And that statistic gets worse right about now when school starts to let out and kids aren't in school and they don't have access to free school meals. So Children's Hunger Alliance really gears up on summer nutrition. It's a really important and worthy cause. We say a dollar provides three healthy meals. So it's a fantastic organization.

 

Mike Smith: It really sounds like it. Those are such jaw dropping statistics about hunger in Ohio and throughout the United States. So thanks for being a part of that Alliance.

 

Christina E Niro: Absolutely.

 

Mike Smith: So let's talk about OSHA now and let's start with the little background before we get into the actual issues we're going to talk about. Can you give us a little idea exactly what OSHA does and where it fits in the employment setting?

 

Christina E Niro: Sure. Quick primer, you mentioned occupational safety and health administration. It's a large regulatory agency that falls under the federal Department of Labor. It was created in 1970 when Richard Nixon signed the bipartisan OSHA Act. And OSHA's job on a federal level is to set and enforce safety standards to make sure employers are providing safe and healthy workplaces for their employees. You've also got 22 states and territories with their own OSHA approved state run programs, some more active than others, CAL OSHA being one of them. But for the most part, we look to federal OSHA for our standards.

 

Mike Smith: But you do have to interact with both the state regulatory equivalent of OSHA?

 

Christina E Niro: Absolutely. We do not have one in Ohio though.

 

Mike Smith: Oh, okay.

 

Mike Smith: So let's talk about the federal OSHA program. When Biden assumed the presidency, what was the status of OSHA? How did he find the agency?

 

Christina E Niro: He found it like a lot of other federal agencies, underfunded and understaffed for a long time, not just during the Trump administration. And then when the pandemic hit, employers were pleading for guidance, which was a really unusual set of circumstances because employers don't like to hear too much from OSHA, but we had almost no federal guidance about what to do during the pandemic. And frankly, state agencies weren't all that much more helpful or prepared for the situation.

 

Mike Smith: So as Biden assumed office, knowing that he had to deal with these under staffing underfunded issues, where is it now from a structural perspective?

 

Christina E Niro: Sure. So as Brian Kelly, you may remember, may have mentioned in his podcast, President Biden had tapped right off of the bat, Jim Frederick as acting head of OSHA. He's a longtime United steelworker's investigator. Fulfilling the campaign promise to be very pro labor, pro worker. And it's an interesting confluence of events because you've got a pro labor president coming in, who also now has funding, which hasn't been the case in the past. So President Biden signed the American Rescue Plan Act in March. That was the almost $2 trillion economic relief package. 200 million of that went to DOL agencies, including OSHA. And so OSHA is to get not less than a hundred million dollars just earmarked only for them. So he has wasted no time opening new offices, hiring new compliance officers, spending money on training. His campaign promise was to double the number of OSHA investigators. I'm not sure he's going to get that far, but he can do a lot with a hundred million dollars.

 

Mike Smith: And is there some overall strategy or theme that he's operating under?

 

Christina E Niro: I think being understaffed and underfunded for a long time, we're headed into a period of resurgence and growth with OSHA. I think there's no doubt about that.

 

Mike Smith: So that's the theme that a lot of the commentators from his statement to Congress or his message to Congress were commenting that he's selling, big government's okay. And we're going to get bigger and because we're going to help you. And so you see this as just another aspect of that.

 

Christina E Niro: That's right.

 

Mike Smith: So let's talk about some of the specific initiatives that are existing and that are going to get ramped up during his administration. What do you see out there?

 

Christina E Niro: Sure. So from a macro level, COVID really was an interesting time. Investigators weren't vaccinated. I think there was some initial hesitancy to conduct a lot of onsite inspections because we didn't know a lot about the disease and about the level of... People were worried about basically it being contagious and getting sick. Now that vaccines are widely available, I'd say what we call letter investigations, where OSHA just simply sent you a letter saying, "Hey, we think there might be a violation. Why don't you respond to us in writing, demonstrating that you're in compliance?"

 

Christina E Niro: I think a lot of those letter investigations are going to go away and we can expect return to more onsite investigations, particularly right now. Spring and summer is when OSHA gets active again because that's when construction gets active again. And if you've been on the roads recently, we've enjoyed a nice early spring. So those efforts are already underway. So I think onsite investigations starting now and moving forward are going to increase.

 

Mike Smith: So increase in inspections means increase in violations, right?

 

Christina E Niro: OSHA doesn't show up to a workplace and say, "Oh, you're perfect. There's no room for improvement." They're always looking to improve safety and health for workers. But that a hundred million in funding isn't always going to be there. So that dovetails with my next point that I was thinking about, which is monetary penalties, which do get regularly revised anyways. I think we can see not just in incremental increase in those monetary penalties, but perhaps a little bit more to support all of these new offices and new personnel that are coming in.

 

Mike Smith: And how about making it public? That seems to be one of the things that agencies often do in order to try to get others to comply. Do you see that as being an aspect of the increased compliance activities that they're going to make this stuff public? So other employers know they better start watching their P's and Q's?

 

Christina E Niro: Yeah, absolutely. The reporting of citations and the press releases that came out about employers who'd been cited and who'd settled citations was almost non-existent in the past administration. If you are on some of these mailing lists already, Department of Labor in general and OSHA, those emailings, those public shaming emailings are coming out much more frequently now. And that was a theme during the Obama administration. It was pretty regular, it was pretty harsh. I expect that to be supercharged. And union support on that issue, this public shaming concept has been loud and clear.

 

Mike Smith: I also understand that during the Trump administration, there was a lot of slow walking on rules and regs. Do you see that ramping up as well as part of this initiative?

 

Christina E Niro: Yeah, there was no temporary emergency standard relating to COVID that was even on the radar. I think we've got a new national emphasis program now, but there's been a lot of stuff, like you just said, sitting on the back burner that OSHA's going to now try to push through. There are some existing proposed rules and final rules on whistleblower issues, on tree care, construction. I think we can expect those to move quickly possibly before the end of the year, seeing a lot of updates from OSHA.

 

Mike Smith: And obviously we can't escape any podcasts or other discussion these days without focusing on COVID for a little bit. So do you see OSHA having any COVID specific activities relating to inspections or anything like that?

 

Christina E Niro: The five million of the hundred million budget was specifically allocated to COVID related inspections. The new national emphasis program that came out in March focuses the agencies enforcement efforts on companies that are putting the largest number of workers at risk of contracting COVID. So your meat packing plants, your healthcare facilities. They're really trying to prioritize those employers. And they've also said publicly those employers who are alleged to have retaliated against workers for complaining about unsafe or unhealthy work conditions.

 

Christina E Niro: So I think there are a few hints, few takeaways, maybe little hints from the national emphasis program that can inform employers on what to expect during future COVID inspections if you do get a COVID specific inspection. They're going to be looking at your safety plan documents, perhaps before they even come on site. You have to have a written safety and health plan that includes a pandemic plan. Now it includes hazard assessment, PPE related to COVID, social distancing, face coverings, all that kind of stuff, respiratory protection, possibly training, medical record keeping, all of those things. And really, even if it's not a COVID specific inspection, my experience over the past couple of months has been inspectors, compliance officers, that is, have been coming in. And even if it's an amputation or it's a guarding issue, they're still asking the COVID questions anyways. So you have to be prepared one way or another.

 

Mike Smith: So it sounds like you really have to start documenting things appropriately if you're just about everything you're doing.

 

Christina E Niro: If you haven't already. Yeah.

 

Mike Smith: So let's talk long term. Do you see anything in the coming months or even in the next three years, that's going to be something different that the Biden administration's going to try to tackle through OSHA or through its other initiatives as far as workplace safety goes?

 

Christina E Niro: I think President Biden in just the first hundred days, we just finished the first hundred days, he's really come out swinging, he's really come out pushing. I think he's going to try to push in a lot of different ways, existing policies... And I think if the theme is growth and expansion, I think there are other areas where OSHA has in the past dipped its toe into the water and maybe there's room for a lot of extra work to be done. I think workplace violence, aging workforce issues, definitely mental health, I think not only around the frontier for other Department of Labor agencies, but I also think for OSHA, we're going to see and have already seen, frankly in my practice, a lot of interagency cooperation. EEOC coordinating with OSHA on investigations.

 

Christina E Niro: As far as mental health, I think COVID gives them a really great opening. The United States has had really bad mental illness rates, the highest among women, younger generations, minorities. And the pandemic obviously made that existing problem worse. I think mental health and COVID, I think it gives OSHA an opening to do more there and a logical opening and a reasonable opening. It won't be an issue that's coming out of left field for OSHA. It's going to be something frankly that employers should expect and should be dealing with.

 

Christina E Niro: I'm actually speaking to a lot of organizations and employers now about mental health as return to work starts to happen. I think worker wellbeing to the Biden administration is all encompassing and is going to include mental health.

 

Mike Smith: And I know from the rumor mill that you're going to be talking about that in an upcoming webinar presentation, is that right?

 

Christina E Niro: Yeah. Me and Brian Kelly in June. So stay tuned for that. It's going to be specifically devoted to mental health and the Americans with Disabilities Act, as people are coming out of isolation and back into the workplace.

 

Mike Smith: That should be an interesting webinar then. So as far as worker wellbeing, that's a multi-pronged thing as you've talked about. So do you see there being any initiatives from other agencies to get involved in terms of the science of mental health as it relates to OSHA?

 

Christina E Niro: Yeah. I think the National Institute of Occupational Safety and Health, it is going to be an organization from which we can expect more research, more initiatives. The US is reentering the World Health Organization. So I think that's probably going to open up some additional funding for research for healthy workplace models. I think as far as funding goes, the Biden administration is doing a good job of looking for a lot of different buckets to dip into. Absolutely.

 

Mike Smith: Well, Christina you've certainly given us a lot to chew on, and it'll be interesting to see how this all plays out with the Biden administration, whether it keeps up with his other efforts to expand government involvement in various aspects. So we appreciate you being here. One of the things we always ask our guests at the end of the podcast is if they could share what they consider to be two or three takeaways so that the listeners can have something to focus on as they turn us off for another session.

 

Christina E Niro: Yeah, absolutely. That makes sense. So I think first of all, expect more onsite inspections. Expect OSHA to be more active with particularly the construction industry. A lot of OSHA compliance officers, I've heard them say, "I was driving down the highway and I saw construction site and I saw something wrong and I pulled over." I think there's going to be a lot more of those onsite inspections coming our way.

 

Christina E Niro: Second, I think increased scrutiny on COVID just across the board, not in high risk industries. So even if you're not healthcare, even if you're not a meat packing plant expect those COVID questions when OSHA knocks at your door.

 

Christina E Niro: And I think third, just stay tuned and keep an ear out for guidance on non COVID issues this year. I think we're going to see a lot of non COVID guidance coming out.

 

Mike Smith: Well. That's great. I really appreciate you being here today with us, Christina. Thanks for coming.

 

Christina E Niro: Happy to.

 

Mike Smith: So to recap, Christina's three takeaways from today's discussion. First, get your businesses ready for potential onsite inspections, because they're going to ramp up. Second, COVID scrutiny is not going away so that needs to be part of your compliance program. And three, keep an eye out for the new guidances that are going to come from the Biden administration because there may be a lot of them in the future.

 

Mike Smith: And that wraps up another episode of shoveling Smoke. Thanks for checking in with us and we hope you listen again next time. Shoveling smoke is a production of Evergreen Podcasts. Our producer and audio engineer is Sean Raul Hoffman. Thanks for listening.