The Occupational Safety and Health Administration shifted priorities during the first year of President Joe Biden’s administration. The agency is expected to move forward on numerous regulatory actions and be much more active with inspections and enforcements. Additionally, OSHA programs that have been relatively inactive in recent years are likely to be revived in 2022.
In October, the U.S. Senate confirmed Douglas Parker as assistant secretary of labor for occupational safety and health to head up OSHA. This is the first time since 2017 that OSHA has had leadership in more than an “acting” capacity. Parker most recently served as head of the California Division of Occupational Safety and Health (Cal/OSHA). During the confirmation hearing, he was questioned about California’s COVID-19 policies. Democratic Sen. Patty Murray of Washington said, “At every step in his career, Mr. Parker has been a dogged advocate for worker safety—and I have no doubt that will continue when he is confirmed to lead OSHA.”
Before heading Cal/OSHA, Parker was the executive director of Worksafe, an Oakland, Calif.-based nonprofit, deputy assistant secretary of policy and senior policy advisor at the Mine Safety and Health Administration (MSHA), partner at the Mooney, Green, Saindon, Murphy and Welch law firm in Washington, D.C., and staff attorney for the United Mine Workers of America in Triangle, Va.
Dean McDaniel joins Parker on the OSHA leadership team. He has been with OSHA for more than 32 years and most recently served as the assistant regional administrator for Region VI. McDaniel will lead OSHA’s policy implementation in Arkansas, Louisiana, New Mexico, Oklahoma and Texas.
According to Jim Frederick, deputy assistant secretary of labor for occupational safety and health, at the time of the appointment, “Dean’s extensive safety, health and management experience will help him succeed as he continues OSHA’s strong, fair and effective enforcement; outreach, education and compliance assistance; and cooperative and voluntary programs throughout Region VI.”
In Biden’s first Department of Labor (DOL) budget request, he sought a 12% increase in funding for OSHA to $664.6 million, up from the $591.2 million in the revised enacted FY 2021 budget passed by Congress. The proposal includes an increase in federal enforcement from $228.7 million to $254.6 million, and an increase in federal compliance assistance from $75.2 million to $86.2 million.
Congress passed a continuing resolution for FY 2022, maintaining current funding levels. Regardless, the budget should have minimal impact on OSHA’s regulatory priorities.
In 2019, OSHA had 752 inspections, a record low in the agency’s history. In 2020, that number increased to 790. Under the administration’s budget request, that number would go up by 150. However, even if OSHA begins hiring new inspectors right away, they probably won’t be trained and field-ready for about a year and a half. Once they are, employers can expect to see double the number of inspections occurring now.
The FY 2022 budget proposal would have provided a $2 million increase in funding for the Susan Harwood Training Grant Program. The previous administration tried to eliminate the program. However, Congress didn’t comply with any such requests and appropriated nearly $11.8 million to the program in FY 2021. Biden’s request also included an increase for MSHA, from $379.8 million to $447.2 million.
In a DOL news release announcing the budget proposal, Secretary Marty Walsh noted, “The President’s budget renews the Department of Labor’s commitment to help America’s workers, particularly those from disadvantaged communities, find pathways to high-quality, good-paying jobs. The president’s initiatives also restore the department’s capacity to protect the health, safety, rights and financial security of all workers. Additionally, the American Jobs Plan’s investments further enhance the department’s ability to meet its mission by creating pathways to millions of high-quality jobs and rebuilding our country’s infrastructure.”
In the second half of 2021, the White House Office of Management and Budget released OSHA’s Regulatory Agenda for 2022. It included several changes from the priorities under the previous administration. One of the most notable changes would restore two parts of OSHA’s injury and illness recordkeeping regulations in a forthcoming rulemaking. The agency is expected to require establishments with more than 250 employees to provide electronic records of their injury and illness data from forms 300, 300A and 301. OSHA issued a final rule in 2016 that required employers to submit all three forms. However, under the Trump administration, the rule was modified to only require Form 300A. A notice of proposed rule-making (NPRM) for the update was scheduled to be published in December 2021, but has not been released yet at the time of publication.
Other regulations newly listed as active include preventing heat illness in outdoor and indoor work settings. Both actions are denoted as being in the prerule stage. However, any regulations on heat-related illnesses may be challenging to quantify and enforce, because the way heat impacts different individuals is highly subjective and variable.
In September 2021, OSHA implemented an enhanced enforcement initiative pertaining to heat-related hazards. The agency developed a National Emphasis Program on heat inspections to gear up for creating a workplace heat standard. OSHA also created a National Advisory Committee on Occupational Safety and Health Working Group for Heat Injury and Illness Prevention.
In a news release announcing the initiative, Walsh said, “Throughout the nation, millions of workers face serious hazards from high temperatures both outdoors and indoors. Amid changing climate, the growing frequency and intensity of extreme heat events is increasing the dangers workers face, especially for workers of color who disproportionately work in essential jobs in tough conditions. As Secretary of Labor, my priority is to make sure we are taking appropriate action to keep workers healthy and safe on the job.”
Two actions were removed from the agenda altogether. These include an NPRM to rescind OSHA’s reporting requirements for injuries resulting from mechanical power presses (1910.217(g)) and Exposure of Underground Miners to Diesel Exhaust, under MSHA.
Five regulations were moved to the final rule stage, including the handling of retaliation complaints under the Taxpayer First Act of 2019; whistleblower protection statutes; the handling of retaliation complaints under the Anti-Money Laundering Act of 2020; the Criminal Antitrust Anti-Retaliation Act of 2019; and the Testing, Evaluation, and Approval of Electric Motor-Driven Mine Equipment and Accessories proposed rule under MSHA.
Long-term action list
Additionally, three items were moved from the long-term action list, on the previous agenda, to active status. This includes Process Safety Management and Prevention of Major Chemical Accidents, now at the prerule stage; Shipyard Fall Protection—Scaffolds, Ladders and Other Working Surfaces, now at the proposed rule stage; and Infectious Diseases. OSHA was anticipating the announcement of an NPRM in December to fall roughly six months after the issuance of the Emergency Temporary Standard (ETS) on COVID-19.
If the ETS had proceeded, it would have “required employers of 100 or more employees to implement a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Employers must obtain proof of vaccination; absent other documentation, an employer may accept an employee’s attestation (including specific elements identified in the ETS) signed under penalty of perjury. Neither vaccination nor testing records are subject to the 30-year document retention policy. Employers need only provide a reasonable amount of time away from work for vaccine side effects.”
OSHA did include an opt-out clause for medical and religious exemptions of those who qualify.
However, OSHA announced in November that enforcement of the standard, which was supposed to go into effect on Jan. 10, 2022, was on hold. The Supreme Court heard arguments on the ETS on Jan. 7, 2022, and, on Jan. 13, blocked the mandate for large private companies. However, a regulation issued by the Centers for Medicare and Medicaid Services was upheld, which mandates vaccines for almost all employees at nursing homes, hospitals and other providers receiving federal funds.
Biden issued a similar Executive Order, 14042, directed at federal contractors. It requires federal agencies to amend federal contracts to mandate federal contractors and their subcontractors take specific actions against COVID-19. This includes a vaccination requirement. This order became effective in January 2022. Unlike the ETS, these requirements are moving forward. However, there has been some push-back from the industry, seeking to delay the start date until later in the year.
Finally, the Advisory Committee on Construction Safety and Health is a 15-member body appointed by OSHA leadership: five representing employers, five representing employees, two representing state safety and health agencies, two representing the public and one member from the National Institute of Safety and Health. Although the group was relatively dormant under the Trump administration, it did meet virtually in August 2021 as a result of COVID-19, and is expected to be active moving forward.
In the next 12 months, expect to see a greater emphasis on OSHA inspections, work toward an infectious disease standard and a return to more stringent recordkeeping requirements.