February 2, 2021

Biden Administration Issues Wide-Ranging Executive Orders to Protect Workers

Brittany Barrientos, Alisa Nickel Ehrlich, Greta Bauer Reyes

Stinson LLP

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Several of the first actions signed by President Biden following his inauguration were directly aimed at worker safety. These included:

Protecting the Federal Workforce and Requiring Mask-Wearing: Individuals on federal lands should wear masks, maintain physical distance, and adhere to other public health measures per CDC guidelines
Establishing the COVID-19 Pandemic Testing Board and Ensuring a Sustainable Public Health Workforce for COVID-19 and Other Biological Threats: Establishes board to: make recommendations to promote COVID-19 diagnostic, screening and surveillance testing; reduce disparities in testing access; expand testing to priority populations; and propose short- and long-term reforms related to testing increases, genome sequencing and testing speed. Also establishes a public health workforce program to work with federal, state, local, tribal and territorial leaders to understand challenges related to the pandemic and provide support and long-term recommendations for achieving a sustainable public health workforce.

As it relates to overall worker safety, the most immediate order was the Executive Order on Protecting Worker Health and Safety. Among other directives, the order directed OSHA to issue updated guidance to employers on workplace safety during the COVID-19 pandemic. The order also requires OSHA to take other actions. These include considering whether the agency should issue any emergency temporary standards, review its enforcement efforts, launch a program to focus its enforcement efforts on certain violations, as well as anti-retaliation principles. The order also requires OSHA to coordinate a multi-lingual outreach campaign to inform workers of their rights under the OSH laws, specifically requiring that OSHA engage with labor unions, community organizations and industries in this outreach effort. Each action item from the executive order is identified below:

Executive Order Requirement	Deadline	Status	Notes
Issue revised guidance to employers on workplace safety during COVID-19 pandemic	February 4, 2021	Issued January 29, 2021 Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace	A detailed summary of the new guidance can be found in "OSHA Issues First New General Workplace Guidance since June 2020."
Consider whether any emergency temporary standards on COVID-19 are necessary, including with respect to masks in the workplace	March 15, 2021	Under review
Review the enforcement efforts of OSHA related to COVID-19 and identify changes that could be made to better protect workers	Ongoing		Summary of OSHA's COVID-19 enforcement. Our attorneys have analyzed OSHA's enforcement trends and common Citations and are happy to discuss.
Launch national program to focus OSHA enforcement efforts related to COVID-19 violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles	Unknown
Coordinate within DOL and regional offices on a multilingual outreach campaign to inform workers	Ongoing
Coordinate with states with OSHA state plans to ensure workers are adequately protected	Ongoing
In states without state plans, consult with state and local entities responsible for public safety to bolster protection from COVID-19	Ongoing
Secretary of Agriculture, Secretary of Labor, Secretary of Health and Human Services, Secretary of Transportation, and Secretary of Energy shall explore mechanisms to protect workers not protected under the OSH Act	Ongoing
MSHA shall consider whether any emergency temporary standard is necessary for coal, metal or non-metal mines and issue them if necessary	As soon as practicable

Check back for updates, as Stinson's health and safety team is monitoring the status of each of these items and will update this alert as OSHA checks items off the list. Our attorneys will also cover these and other issues facing employers at the upcoming New Challenges for HR in 2021 webinar on February 4.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.