By Kevin Stawicki

Law360 (April 16, 2020, 10:17 PM EDT) -- The Occupational Safety and Health Administration is issuing more safety tips for workers on the front lines of the coronavirus pandemic instead of imposing new legal obligations on employers, a move that has raised questions about whether the agency is doing enough to protect workers.

On Thursday, the agency within the U.S. Department of Labor that sets and enforces workplace safety rules sent out an alert with tips for manufacturing workers that suggests social distancing, letting workers wear masks and practicing good hygiene. Similar lists were recently provided for pharmacy, retail and delivery workers on the front lines of the pandemic, instructing employers to clean surfaces and use drive-through windows to help prevent the virus' spread.

Those safety alerts are an extension of OSHA's March 9 guidance, which listed steps employers should take to respond to the COVID-19 pandemic. Clarifying that the guidance was "not a standard or regulation" and "creates no new legal obligations," OSHA suggested employers develop an infectious disease response plan, implement infection prevention measures like hand washing, and isolate sick workers.

On Monday, the agency issued a temporary enforcement plan directing field offices to be judicious in their use of in-person worksite inspections when they investigate workplace safety complaints or reports of severe illnesses that may have been caused by the virus.

The March guidance and the more recent actions are the agency's way of saying, "We've already given you enough information you need to make sure your employees are observing appropriate work practices to avoid an exposure scenario," Kevin Mayer, a partner at Norton Rose Fulbright, told Law360. "The agency is saying, 'We don't think we have to articulate nor do we have the time or wherewithal to articulate a formal standard with the force of law.'"

State occupational safety agencies are the best place to implement explicit guidelines and, in some cases, formal standards for certain places of employment like health care facilities, Mayer said.

But other experts say OSHA needs to take a more substantive role and impose mandates on employers to play by the rules after a wave of strikes and walk-offs over employers' handling of the pandemic and recent reports that essential workers have lodged thousands of complaints with the agency over safety conditions.

"At a time when governors are issuing shelter-in-place orders and requiring consumers to wear masks in retail spaces, OSHA is offering guidance 'tips' for manufacturing and package delivery companies. The nation's primary workplace safety and health agency must do better, and now," said Jim Brudney, a Fordham Law School professor who previously served as chief counsel of the U.S. Senate Subcommittee on Labor.

"Before we can get the economy started again, we need more from OSHA than classifying health care facilities as high risk," he said in an email. "There should be mandated federal protections for workers at Smithfield Foods, Whole Foods, and the rest of our food-producing, manufacturing, and retail facilities."

Brudney suggested that the agency exercise its authority and issue an emergency temporary standard, which would require employers to adhere to more clearly defined federal safety standards.

"What are they waiting for?" he said.

Rep. Bobby Scott, D-Va., chair of the House Education and Labor Committee, backed the emergency temporary standard and said earlier this week if the agency doesn't issue it, Congress should force it to do so through legislation.

But Mayer said the emergency measure is "just not necessary."

"There's absolutely nothing that prevents any employee from calling OSHA at any time and saying, 'Our employer is not providing a safe and healthful work environment.' You don't need a standard," he said. "I would suspect [OSHA] doesn't feel they need one because observance of the guidelines would preclude employees from being in the 'grave danger' required to issue such a standard."

Josh Henderson of Norton Rose said in an email that in order to issue the emergency measure, the agency would have to "be convinced (and be able to defend in court) that an emergency temporary standard is necessary to protect employees."

"Publishing this list of tips shows that the agency may not feel an emergency standard is warranted at this time," he said.

--Additional reporting by Vin Gurrieri and Braden Campbell. Editing by Adam LoBelia.

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