Occupational Safety & Health Administration (OSHA) issues and proposed actions took center stage in the first week of the Biden Administration. The President called for greater enforcement by OSHA of more stringent worker safety standards. Central to this call is greater protection for workers regarding COVID-19 workplace exposures. To accomplish this, in part, OSHA would have to issue an emergency temporary standard. By issuing such an emergency temporary standard, OSHA can bypass the administrative rulemaking procedures, which often take years to complete. To justify such an emergency temporary rule, OSHA would have to prove that “employees are exposed to grave danger.” However, such a temporary rule can only stay in effect for six months. It will also likely face court challenges.
The proposed emergency temporary rule would likely mandate employers to draft a written plan, which would be available for OSHA review, and address mask wearing, physical distancing, exposure controls, and engineering improvements in the workplace. If necessary, President Biden has ordered such a new OSHA standard to be issued by March 15, 2021.
The executive order issued on January 21 by President Biden requires the issuance, within two weeks, of revised guidance to employers regarding COVID-19 workplace safety. Additionally, the executive order requires OSHA to coordinate with the OSHA state plan programs. Some states, such as California, Michigan and Virginia, have already implemented COVID-19 OSHA standards, but not without issues.
Besides these COVID-19-related actions, the President appointed longtime United Steelworkers’ official, James Frederick, to serve as the Deputy Assistant Secretary of Labor and begin effectuating President Biden’s changes. Such an appointment signals a move to a more union-employee-friendly approach to safety and health issues. Frederick began work last Wednesday. It is anticipated, as Democratic presidents of the past have done, the new administration will take a more enforcement-compliance-minded direction. This will probably result in more citations, higher penalties, and a more tough-minded approach to employer contest cases. Thus, it looks like significant change is on the horizon at OSHA, including substantial proactive actions regarding COVID-19 in the workplace.
