What OSHA Will Be Like under a Biden Administration

The Occupational Safety and Health Administration (OSHA) regulates workplace safety, and its powers are expected to expand under the administration of president-elect Joe Biden. Already, as president-elect, Biden has signaled his intention to expand the reach of OSHA.

On December 29, the president-elect issued a statement that says, “Yet today, in the midst of a global pandemic, OSHA has been prevented from using its full range of tools to protect workers from COVID-19.” Further, “My administration will ask OSHA to determine whether to establish an emergency temporary standard to keep workers safe from COVID-19. I will direct OSHA to enforce worker safety requirements, target the worst violators, and work to increase the number of OSHA inspectors to get the job done.” Biden intends to increase the number of OSHA inspectors and to enforce a yet-to-be-determined safety standard for COVID-19.

For employers, this could mean increasing the measures they are taking to limit the spread of the coronavirus. It could mean disruption of ordinary workplace activities to put these new safety measures in place. It may also mean exposure to lawsuits if workers get sick. Currently, Congress is working on a bill that would limit such exposure, but it has yet to pass. Another bill that limits employer liability has already passed.

The standard that Biden proposes may well follow the one already established in California. That standard requires COVID-19 testing during work hours that is employer-funded, requires paid leave, and may bring employers into the respiratory protection standard. Industry groups are currently challenging that standard in court. Biden’s plan may also borrow from the twenty-eight state standard currently being enforced in twenty-eight states, including Michigan, Oregon, and Virginia. These states have enacted emergency temporary standards to protect workers from COVID-19. Under the California and twenty-eight state rules, employers can expect stricter workplace safety standards and post-incident drug testing. On the other hand, post-incident drug testing may be scrapped as it may be viewed as a form of employer retaliation.

Respiratory Protection

Respiratory Protection (see 29 CFR 1910.134) may be invoked as a step against COVID-19. Although the regulation does not address viruses but rather
“harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors,” it may be invoked under a new rule. If it is, employers will need to provide respirators to employees. Respiratory protection is the fifth most cited rule for violations, after fall protection, hazard communication, scaffolding, and lockout/tagout. A revitalized OSHA may well be on the lookout for respiratory protection, even if the rule does not specifically address viruses. Alternatively, any new rule could simply make up a way to increase protection against viral transmission. Requirements for mask wearing, for example, could be in the works. A policy regarding lunchrooms and how many people at a time may eat without a mask could be in order. Enforcement would be allowed under the general duty clause, which states that “Each employer–shall furnish to each of his employees 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 his employees.”

Whistleblower Protections

Whistleblowers are protected under OSHA rules. Specifically:

The OSH Act protects workers who complain to their employer, OSHA or other government agencies about unsafe or unhealthful working conditions in the workplace or environmental problems. You cannot be transferred, denied a raise, have your hours reduced, be fired, or punished in any other way because you used any right given to you under the OSH Act. Help is available from OSHA for whistleblowers.

Employers are prohibited from the following acts in retaliation against a whistleblower:

  • Applying or issuing a policy which provides for an unfavorable personnel action due to activity protected by a whistleblower law enforced by OSHA
  • Blacklisting
  • Demoting
  • Denying overtime or promotion
  • Disciplining
  • Denying benefits
  • Failing to hire or rehire
  • Firing or laying off
  • Intimidation
  • Making threats
  • Reassignment to a less desirable position, including one adversely affecting prospects for
    promotion
  • Reducing pay or hours
  • Suspension

Employers that engage in any of these activities risk lawsuit as well as OSHA enforcement action. Employees have between 30 and 180 days to file a complaint of a violation, depending on the law being violated. In most cases, they have thirty days in which to file a complaint for retaliation.

Masks, Social Distancing, and Handwashing

It seems reasonable to assume that the Biden administration’s new rules regarding COVID-19 protection in the workplace will include some form of regulation regarding face masks, social distancing, and handwashing. Employees may likely be required to wear masks, work six feet apart, and have access to handwashing facilities. How such requirements may be met in your workplace is a problem that you must work out. It may be easy, or it may be all but impossible, depending on the workplace. But such a regulation may be forthcoming. As Biden’s statement puts it: “My administration will ask OSHA to determine whether to establish an emergency temporary standard to keep workers safe from COVID-19.” It is thus possible that no new standard will be announced, but it seems likely that a new standard is on its way.

Recordkeeping

Another change that may come with the Biden administration is a change in recordkeeping rules. Currently, to protect employee privacy, employers are required to submit only summaries of workplace accidents to the government, and these summaries are private. The Biden administration may change this rule to make safety violation and accident records public, so that competitors, labor unions, and the press may know about each employer’s safety record.

Infectious Disease Standard

OSHA has been working on a new infectious disease standard for some time. As OSHA puts it: “OSHA’s first public step in developing a standard to address occupational exposure to infectious diseases was to issue a Request for Information (‘RFI’) on May 6, 2010.” At meetings to discuss the issue, “Some stakeholders questioned whether it was necessary for OSHA to develop a new standard specific to infectious diseases, and urged OSHA to consider that many healthcare facilities are already heavily regulated in this area.” Whether workplaces other than healthcare facilities may see regulations similar to those of healthcare facilities remains to be seen. Many regulations affecting healthcare facilities concern bloodborne pathogens and thus do not apply to COVID-19. Whether a new infectious disease standard will arrive during the Biden administration also remains to be seen.

Latest Executive Orders

Since his inuagaration, President Biden has issued executive orders relating to workplace safety. One order concerns federal workers. It requires “compliance with CDC guidelines with respect to wearing masks, maintaining physical distance, and other public health measures by: on-duty or on-site Federal employees; on-site Federal contractors; and all persons in Federal buildings or on Federal lands.”

Another order requires that government departments do what they can to provide economic relief related to the COVID-19 pandemic.

Conclusion

The Biden administration is moving quickly to address the COVID pandemic and will likely issue new rules concerning protection against COVID-19 infection in the workplace. It also seems possible that any new regulation will imitate California’s regulation, which requires employer-paid on-site testing. It also seems likely that masks, social distancing, and handwashing facilities will be required.

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