President-elect Joe Biden’s administration likely will make major shifts in philosophy and direction at the Occupational Safety and Health Administration. Employers and employees can anticipate seeing a bigger emphasis on enforcement and a resurrection of the strategies implemented under President Barack Obama.
President Biden’s first order of business, however, will likely be to put a temporary emergency COVID-19 standard into place. He has been critical of President Trump’s unwillingness to enact such a regulation.
In a Nov. 13, 2020, Washington Post article, “How Biden could revamp worker health protections in the midst of the deadly pandemic,” Eli Rosenberg wrote: “The Trump administration has resisted calls from former officials, Democrats and labor advocates to institute such a standard during the pandemic, saying that its existing safety rules and coronavirus recommendations are sufficient.”
The new administration will negotiate with labor unions and worker advocacy groups to develop a standard quickly. In the meantime, employers should make certain that their safety policies and procedures are in line with the most up-to-date guidelines from the Centers for Disease Control and Prevention (CDC), Atlanta.
The Post article also acknowledged, “The Trump administration has largely avoided taking major actions against companies whose workers became sick with or died of the coronavirus, and Biden has said he wants to ramp up enforcement to better keep workers safe.”
Until a standard is in place, expect the Biden administration to increase OSHA General Duty Clause citations for violations of CDC guidelines on COVID-19. According to the General Duty Clause, employers must provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” It permits OSHA to cite employers for violations of a recognized hazard when the employer does not take reasonable action to prevent or abate the hazard. The General Duty Clause, typically, applies when there is no OSHA standard for a particular hazard, such as with COVID-19. During the 2009 H1N1 pandemic, the Obama administration enforced CDC guidelines under the authority of the General Duty Clause.
Finalizing a permanent infectious disease standard is anticipated to be a high priority on OSHA’s next regulatory agenda as well. Following the H1N1 pandemic, the Obama administration put forth a lot of effort in developing a new standard that would require health facilities and other high-risk work environments to permanently implement infection-control programs to protect their workers and the general public. However, during the Trump years, the initiative was put on the back burner.
The Obama administration placed a major emphasis on enforcement. That philosophy was maintained by OSHA staffers into the Trump administration, even though it was the complete opposite of his wishes. In what seemed to be a balance of priorities, inspection and citation numbers have remained somewhat static over the last five years. This could be attributed, in part, to the Trump administration’s lack of success in getting Congress to agree on a budget. As a result, Congress enacted continuing resolutions instead, keeping OSHA program funding at 2016 levels. Heading into this year, one would expect the number of OSHA inspectors and inspections to increase.
Currently, there are 761 OSHA inspectors in the workforce. There were roughly 1,000 inspectors on the payroll under President Obama. If the new administration initiates the hiring of 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 up to twice as many inspections annually than are occurring now.
In 2017, OSHA started requiring certain employers to report employee injury and illness data, including information from 300 logs, electronically. OSHA then planned to post the information publicly on its website. The rule was scaled back by the Trump administration, requiring only summary data from the OSHA 300A log. It’s likely that President Biden’s administration will bring back the original 2017 version of the rule.
It is anticipated that the Biden administration and OSHA will work more closely with state OSHA plans.
“State OSHA plans, like North Carolina and South Carolina, have refused to adopt federal OSHA’s increased maximum penalties, originally adopted under the Obama-Biden administration. Meanwhile, other state plans like Virginia, Michigan, and Oregon have adopted their own Emergency Temporary Standard for COVID-19, despite the Trump administration’s refusal to do so,” according to a recent legal alert issued by Fisher Phillips, a labor law firm headquartered in Atlanta.
In the Biden administration, the expectation is that OSHA will encourage states to increase enforcement, and, as mentioned earlier, follow these states with a federal standard to provide a consistent national response to the pandemic.
OSHA amended federal law in 2016 by issuing a final rule prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. The final rule acknowledged that automatic post-accident drug testing procedures were improper because they discouraged workers from appropriately reporting injuries and illnesses. Even though the rule was not completely overturned by President Trump, the administration decided not to enforce it.
In October 2018, OSHA offered clarity in the following statement: “Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
According to Fisher Phillips, “Despite the 2018 clarification, the original version of [the] Obama-Biden rule is still in effect. A Biden administration likely will begin enforcing the rule beginning in January 2021. Thus, employers may want to carefully reconsider any blanket post-accident drug testing policies and instead drug test when ‘employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use,’ thereby taking on a more reasonable suspicion-based standard.”
Unlike the previous administration, President Biden will likely have OSHA leadership in place swiftly. Prior to selecting an assistant secretary of labor to lead OSHA, the president will have to nominate a secretary of labor to run the department as a whole. These decisions had not been made at the time of writing.
In a Nov. 23, 2020, Politico article, “Who will make the cut in a Biden-Harris Cabinet?,” Rebecca Rainey notes that “The head of the AFL-CIO has thrown his support behind Boston Mayor Marty Walsh, who previously led the city’s Building and Construction Trades Council. But other unions in the labor federation are pushing Biden to consider Rep. Andy Levin, a Michigan Democrat who worked as a labor organizer and ran the state’s job training program before he was elected to Congress.”
Vermont Sen. Bernie Sanders has also been advocating for the position. Other candidates to lead the agency include secretary for the California Labor and Workforce Development Agency Julie Su, former deputy labor secretary Seth Harris, and Democratic Rep. Donald Norcross from New Jersey, the only electrician in Congress.
Once a secretary of labor is in place, an assistant secretary of labor will be nominated. The role is likely to be filled by a safety professional with close ties to organized labor. Additionally, it is anticipated that the new administration will reactivate OSHA’s advisory committees and boards and will ensure they meet regularly and are fully staffed. This includes committees on construction safety and health, maritime safety and general industry safety.
The Advisory Committee on Construction Safety and Health comprises 15 members appointed by OSHA leadership. Five individuals represent employers, five represent employees, two represent state safety and health agencies, two represent the public and one member from the National Institute for Occupational Safety and Health. Although the advisory committee has been relatively dormant under the outgoing administration, it is expected to be very active moving forward.
The approval process for cabinet nominations would run more smoothly if there were a Democratic majority in the U.S. Senate. As a result, there’s a lot riding on the two Jan. 5 runoff elections in Georgia, which will be decided after this article is printed. Neither Republican incumbent, David Perdue or Kelly Loeffler, garnered the necessary 50.1% of the vote in the general election required for a win under Georgia law. Loeffler was appointed to the Senate in 2019 by Gov. Brian Kemp to fill the retiring Johnny Isakson’s seat.
If both Democratic challengers, Jon Ossoff and Rev. Raphael Warnock, pull off the upset, the U.S. Senate will be split 50-50 with Vice President Kamala Harris breaking any ties. This would give the Biden administration the luxury of implementing policies and ideals and approving agency heads and cabinet positions very quickly.
However, it is probable that both incumbents will retain their seats, and the Republicans will narrowly maintain their Senate majority.
It should be an exciting year for OSHA and the country alike. In the meantime, if you would like more information regarding the new administration’s policy and regulatory goals for OSHA, visit www.OSHA.gov.