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Biden’s OSHA Virus Plan Promises Frontline Enforcement Boost

Feb. 2, 2021, 3:59 PM

President Joe Biden‘s call for the Occupational Safety and Health Administration to launch an enforcement program focused on Covid-19 violations is likely to ramp up inspections of businesses that employ frontline essential workers, practitioners say.

Biden’s Jan. 21 executive order that tasked OSHA with determining the necessity of an emergency temporary rule to protect workers from on-the-job Covid-19 infection also assigned the agency with creating a national program to zero in on enforcement of “violations that put the largest number of workers at serious risk.”

In effect, a national emphasis program could help enforce a Covid-19 emergency temporary standard, and add pressure on employers. A targeted program would allow for increased inspections of businesses where Covid-19 violations are likely to take place, even if there isn’t the type of action that usually triggers an OSHA inspection, such as a prior complaint or accident, said attorneys who represent employers in OSHA-related actions.

That could mean greater enforcement efforts in sectors such as meatpacking where workers and unions bemoaned what they considered the Trump administration’s business-friendly approach to occupational safety during the pandemic. But it also could increase tension between the new administration and the business lobby, depending on how the program is structured and carried out.

“We certainly do expect to see OSHA more active on the enforcement end,” said Peggy Otum, a partner at Wilmer Cutler Pickering Hale and Dorr LLP in San Francisco and co-chair of the firm’s energy, environment, and natural resources practice.

OSHA often initiates an emphasis program when it spots a trend in workplace injuries and illnesses. Such programs typically involve each of OSHA’s 75-plus area offices being annually assigned to inspect a list of employers randomly chosen by agency headquarters staff because they meet certain criteria.

There are currently nine national programs and 102 regional and local programs, including ones to inspect auto parts manufacturers in the southeastern U.S. and to prevent trench collapses at construction sites.

The program the Biden administration is developing would help further the new president’s push to reorient federal workplace safety enforcement to benefit workers—something organized labor has been demanding since the pandemic’s earliest days.

In concert with an emphasis program, Biden told OSHA to review its enforcement efforts and identify changes that could better protect workers.

The Trump administration didn’t issue a Covid-19 emergency standard. Its appointees, including former Labor Secretary Eugene Scalia, told congressional Democrats and unions that OSHA’s existing rules for respirators and bloodborne pathogens, as well as the general duty clause of the Occupational Safety and Health Act, were sufficient to enable proper enforcement.

‘A Reason and a Rationale’

The general duty clause requires employers to provide workplaces free of known, potentially fatal hazards that can be feasibly corrected. But worker advocates blasted the Trump administration for failing to use existing laws and rules to mount an aggressive enforcement stance, especially in frontline industries.

“Under the last administration, the enforcement directive under Scalia essentially turned off almost all enforcement—especially in response to complaints,” said Debbie Berkowitz, a former OSHA official during the Obama administration who new serves as safety and health program director for the National Employment Law Project, a worker advocacy group.

Biden told OSHA to consider issuing its first Covid-19 rule by March 15, but the agency hasn’t offered a timeline for releasing a national emphasis program.

“We are in the process of developing that,” Patricia Smith, senior counselor to the secretary of labor, said during a Jan. 29 press briefing, as the Biden administration released new workplace safety guidance for employers.

The agency could require states with their own worker-safety agencies—such as California, South Carolina, Indiana, Utah, and Michigan—to adopt the federal emphasis program or initiate similar initiatives on their own.

How the agency designs the program and the degree to which it works with employers and trade groups are key factors in determining its effectiveness.

Richard Fairfax, who retired as OSHA’s deputy assistant secretary during the Obama administration and is now a consultant, said inspections conducted under the program will have to withstand legal challenges that allege unfair targeting of employers.

The agency will need to justify its decisions on which businesses to target based on its own enforcement data and information from the Centers for Disease Control and Prevention.

“The emphasis program has to have a reason and a rationale,” Fairfax said.

A Smithfield Foods Inc. pork processing facility in Missouri is pictured in April 2017.
Photographer: Daniel Acker/Bloomberg

Marc Freedman, vice president of employment policy for the U.S. Chamber of Commerce, noted that past emphasis programs have included outreach efforts to businesses that helped the agency understand employers’ challenges.

“They are as much for OSHA information gathering as they are for citing employers,” Freedman said.

That could be especially relevant as employers adapt to evolving guidance from the CDC, Freedman added.

Who Gets Inspected

The emphasis program may follow the agency’s inspection priority list, issued in May, which gave the highest ranking to health care and related services that deal directly with Covid-19, said Tom Galassi, who retired as OSHA’s career-service director of enforcement after serving in that role during the Obama and Trump administrations.

OSHA could add a secondary list of jobs that involve increased contact with the general public, such as essential high-volume retail employers in the grocery or pharmacy sectors, Galassi said.

Attorney Erik Dullea, a partner with Husch Blackwell LLP in Denver, said the emphasis program could be a tool to inspect meatpacking plants and worksites where large numbers of workers are employed and maintaining social distancing is difficult.

A congressional panel overseeing the coronavirus pandemic launched an investigation Monday into Covid outbreaks at meatpacking plants, requesting that OSHA submit virus-related complaints from the sector and records of on-site inspections and enforcement actions.

Otum, who spoke to Bloomberg Law before news of that probe, agreed that meatpackers could be a focus. She added that OSHA may include distribution sites like Amazon.com’s fulfillment centers and workplaces with large numbers of frontline essential workers.

Following past practice, OSHA could include a 90-day period for it to offer compliance assistance to employers before commencing targeted inspections, but that wouldn’t affect inspections prompted by complaints, accidents or reports from health agencies.

Otum said Biden’s call for OSHA to review enforcement efforts could lead the agency to reconsider its policies for deciding when a complaint merits an inspection.

Worker advocates had complained during the Trump era that OSHA too often relied on employers to correct problems workers had raised with the agency rather than starting an inspection or visiting a worksite to investigate allegations.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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