President Joe Biden has taken a number of actions that indicate an increased focus on worker safety, especially with regard to COVID-19. On his second day in office, the president signed an Executive Order on Protecting Worker Health and Safety directing the Occupational Safety and Health Administration (OSHA) to issue new COVID-19 guidance. He also ordered the agency to investigate whether new standards are necessary and to target enforcement to protect a greater number of workers from COVID-19 hazards. This order, coupled with Biden’s nomination of former union leader Marty Walsh as Secretary of Labor, with oversight for OSHA, and the Obama-Biden administration’s pro-labor history, portend an era of increased OSHA regulation, investigations and citations.
Guidance and standards
The president indicated that the federal government would take swift action to reduce the spread of COVID-19 in the workplace, including “issuing science-based guidance to help keep workers safe…including with respect to mask-wearing.” Biden directed OSHA, in consultation with other appropriate agencies, to issue revised guidance to employers on workplace safety during the COVID-19 pandemic within two weeks (February 4). The president also ordered OSHA to consider whether any emergency temporary standards on COVID-19 are needed and if so, to issue those standards no later than March 15. If they are in fact issued, new standards could include requirements such as mask mandates, employer testing and exposure control plans. Unlike guidelines, which are voluntary recommendations for compliance with workplace safety initiatives, OSHA standards are mandatory, enforceable rules.
Enforcement of OSHA standards
OSHA was also ordered to review enforcement efforts related to COVID-19 and to identify any short-, medium- and long-term changes that could be made to better protect workers and ensure equity in enforcement. The agency was told to focus COVID-19 enforcement efforts on “violations that put the largest number of workers at serious risk.” To date, OSHA has been focusing heavily on healthcare organizations, food packaging plants, and other workplaces where there has been increased risk of COVID-19 transmission. Since the pandemic began, OSHA has issued more than 300 COVID-related citations, the vast majority of them to healthcare employers, totaling more than $4 billion in proposed penalties.
Coordinating with state OSHA programs
Many states have their own worker health and safety programs, and the executive order directs OSHA to coordinate with those states where it does not have jurisdiction to increase inspections and enforcement of COVID-19 safety consistent with any revised guidance or emergency temporary standards issued by OSHA.
Communicating to workers
President Biden also ordered that OSHA and other agencies conduct a multilingual outreach campaign to inform workers and their representatives of their rights under applicable law. This campaign will include engagement with labor unions, community organizations, and industry groups, placing a special emphasis on communities hit hardest by the pandemic, the order said.
Employers should monitor changes to OSHA guidelines and standards and invest resources into pinpointing and eliminating COVID-19 and other hazards in their workplace. These actions will not only help keep workers safe, but as we enter an era of anticipated increases to OSHA regulation and enforcement, it will help employers avoid OSHA citations, fines and lawsuits.
If you have questions about COVID-19’s impact on OSHA compliance or you are looking to contest an OSHA citation or prepare for the OSHA inspection process, give us a call. The OSHA lawyers at Sheehy Ware and Pappas have deep expertise in OSHA matters ranging from compliance counseling to representing clients in OSHA lawsuits.