Since his inauguration in January 2021, President Joe Biden has been active in combatting the COVID-19 pandemic with various executive orders.
In response to these orders, OSHA has implemented a new national emphasis program focusing efforts on industries and employers most impacted by COVID-19. Also, OSHA updated its COVID-19 guidance recommending that all employers adopt a formal COVID-19 prevention plan.
- Employers have new obligations under the COVID-19 National Emphasis Program
- COVID-19 citations could come under the umbrella of the General Duty Clause.
- The appointment of Marty Walsh could lead to further COVID-19 standards and action from OSHA.
- Employers can expect an uptick in regulations, inspections, citations, and fines under the Biden administration.
Get to Know the COVID-19 National Emphasis Program
The new national emphasis program emphasizes inspecting workplaces with COVID-19 related fatalities, serious illnesses, outbreaks, and employee complaints.
Secondarily, the national emphasis program requires OSHA to compile a list of employers to inspect based on industry and employer 300A data. This list will include employers in healthcare, meat processing, food handling and processing, warehousing and storage, agriculture, construction, and manufacturing with elevated illness rates according to the employer’s individual 300A data.
The program further provides that OSHA will issue citations under OSHA’s General Duty Clause when determining that the employers are not adhering to OSHA and/or CDC guidance in protecting employees from COVID-19. Also, the updated guidance OSHA recently issued incorporates the following activities and elements that employers should be taking to protect employees from COVID-19:
- Conduct a hazard assessment relating to COVID-19 exposure;
- Identify control measures to limit the spread of COVID-19 (such as distancing, masks, barriers, work-from-home, staggered shifts, etc.);
- Adopt policies that encourage sick workers to stay home and not come to work;
- Communicate and train employees on the policies and procedures implemented (in their native languages); and
- Implement protections from retaliation for workers who raise COVID-19 related concerns and issues.
Additionally, this guidance advises employers to continue to require all employees — even those who have been vaccinated — to comply with all control measures, including wearing masks and social distancing. OSHA justifies this by stating that “there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”
Though these recommendations do not create new standards or regulations, employers should comply with them nonetheless, with the expectation that OSHA will enforce these recommendations by way of the OSHA General Duty Clause or some other existing standard.
What to Expect from New DOL Head Marty Walsh
In addition to these changes, President Biden picked Boston Mayor and former union leader Marty Walsh to lead the Department of Labor, putting him in charge of OSHA.
Walsh, who was supported by many large unions, is expected to pursue a pro-union agenda, including implementing rules making it easier for employees to unionize. Though it is also expected that Mr. Walsh will likely take a more pragmatic approach, it would not be surprising to see Federal OSHA quickly roll out its own COVID-19 related standards.
It is anticipated that Biden’s OSHA will continue the trajectory the Obama administration set forth. Because of this, the following changes are expected:
- increased regulation
- increased inspections
- increased citations
- increased fines
- increased repeat and willful citations.
Further, specific rules enacted by Obama but rescinded by Trump will likely surface again. For example, the rule requiring employers with more than 250 employees to electronically submit data from their 300 and 301s logs (in addition to the already-required 300As information).
Moving forward, employers would be well advised to start tightening up their safety programs, adopting procedures for managing the inevitable OSHA inspections, and preparing for the implementation of COVID-19 standards.