What to Expect: Changes to OSHA Under the Biden Administration

President Joe Biden has taken a number of actions that indicate an increased focus on worker safety, and increased pressure on the Occupational Health and Safety Administration (OSHA). On his second day in office, the president signed an Executive Order on Protecting Worker Health and Safety directing the 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 aggressive and robust enforcement of workplace safety.

Here is a checklist of what employers can expect from the new administration.

1. New COVID-19 guidance has been issued.

Following a directive from Biden, OSHA released new COVID-related guidance. The new guidance, which provides insight into what a new standard would likely include, says employers should:

  • Provide all workers with face coverings unless their work requires a respirator
  • Provide COVID-19 vaccinations at no cost to eligible employees and guidance on screening and testing
  • Implement safety measures that do not distinguish between vaccinated and non-vaccinated employees
  • Provide paid sick-leave and implement non-punitive policy for quarantine and isolation
  • Assign a workplace coordinator to be responsible for COVID-19 issues

2. Larger employers, employers with whistleblower complaints will be targeted.

President Biden’s executive order told OSHA to target larger employers and employers with whistleblower complaints for investigations. The directive also called forhigher fines for COVID-related citations and stricter oversight and coordination with state plans.

3. The number of OSHA inspectors will increase.

As a candidate, Biden specifically called on former President Trump to “double the number of OSHA investigators.” If additional hiring begins immediately, implementation of new inspectors will likely take around 18 months.

4. Leaders with pro-labor leanings will oversee OSHA.

Biden nominated former union leader and Boston Mayor Marty Walsh as Secretary of Labor and tapped Julie Su, the head of California’s Labor and Workforce Development Agency who formerly worked as a civil rights lawyer, for the Deputy Secretary of Labor role.

5. The original Electronic Reporting rule will be restored.

A 2017 Obama-era rule began requiring certain employers to report employee injuries and illnesses electronically for public viewing. The rule was never formally repealed by Trump, and Biden will likely restore the original version of this rule to force employers to report detailed injuries and illnesses. Without legal challenges, this information would be made public.

6. General Duty Clause (GDC) citations for COVID-19 violations of CDC guidelines will increase.

The GDC, which states places of employment must be free from hazards “likely to cause death or serious physical harm” to employees, is used only when there is no OSHA standard for a particular hazard, like COVID-19. Biden will likely immediately issue more GDC citations for employers who violate the CDC’s COVID-19 violations.

7. A permanent infectious disease standard may be finalized.

After H1N1, President Obama prepared a permanent infectious disease standard, which would require high-exposure workplaces to implement infection control programs to protect workers. Look for Biden to resurrect this proposed standard and push for its adoption, even if the pandemic ends, to ensure future preparedness.

8. The 2016 OSHA anti-retaliation rule may be enforced.

Biden will likely begin re-enforcing a 2016 OSHA final rule prohibiting employers from retaliating against employees for reporting injuries/illnesses.

9. The Fair Pay & Safe Workplaces Act will likely be reinstated.

Under this act, government contractors and subcontractors are required to disclose any and all OSHA citations if the contract/bid exceeds $500,000.

10. Climate Change standard may be implemented.

The new administration may require OSHA to develop a federal standard on workplace heat stress for indoor and outdoor workers. It would most likely mirror the Cal/OSHA (California OSHA) heat standard.

What employers should do

In light of the expected increase in workplace safety enforcement, employers should ensure their safety and health programs are compliant with all OSHA rules and continue providing safe workplaces by identifying and eliminating safety hazards.

A full service, moment of crisis to final resolution team, Sheehy, Ware & Pappas P.C. has an extensive track record helping clients across nearly every industry secure favorable results on Occupational Safety and Health Administration matters nationwide. Contact the OSHA lawyers at Sheehy Ware & Pappas for assistance with all OSHA matters at www.sheehyware.com/practice/osha/.