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Biden Calls for Tougher OSHA Covid-19 Enforcement, Signs Order (1)

Jan. 21, 2021, 9:06 PM; Updated: Jan. 21, 2021, 11:12 PM

The Biden administration has ordered OSHA and another federal agency to determine whether there’s a need for emergency temporary standards protecting workers from on-the-job Covid-19 infections.

“I am calling for the enforcement of more stringent worker safety standards,” President Joe Biden said Thursday, adding that the enforcement will help protect workers while Covid-19 vaccinations continue.

The president’s National Strategy for the COVID-19 Response and Pandemic Preparedness released Thursday calls for the Occupational Safety and Health Administration to issue updated guidance on Covid-19 worker protections. It also directs OSHA and the Mine Safety and Health Administration to consider whether emergency temporary standards are necessary.

If OSHA decides an emergency rule is needed, the regulation should be issued by March 15, according to the executive order Biden on signed Thursday. No date was specified for an MSHA rule.

Rep. Bobby Scott (D-Va.), chairman of the House Committee on Education and Labor, has called on OSHA to issue a Covid-19 rule since the onset of the contagion. Scott welcomed Biden’s action on Thursday.

“I am pleased that President Biden has heard the overlooked voices of workers who are risking their lives to care for the sick, deliver essential services, and ensure there is food on the table throughout this pandemic,” Scott said in a statement to Bloomberg Law.

‘Grave Danger’

To justify an emergency rule, U.S. law requires OSHA to conclude that “employees are exposed to grave danger” by a new hazard. Declaring an emergency need allows the new administration to avoid the lengthy public comment period characteristic of federal rulemaking.

There currently isn’t an explicit national requirement for most employers to protect employees from workplace Covid-19 infections. The Trump administration had relied on the “general duty” clause of the 50-year-old Occupational Safety and Health Act as its primary enforcement mechanism.

Critics complained the measure was ill-suited to the pandemic and that its maximum fine of $13,494 was an insufficient deterrent.

Under the OSH Act, an emergency rule can stay in effect for six months, after which it expires unless replaced by a permanent rule.

Some Workers Not Covered

Any emergency standard wouldn’t cover state and local government employees unless their state has its own state worker safety agency—for example the California Division of Occupational Safety and Health. States without safety agencies include Texas, Florida, Ohio, and Pennsylvania.

The Biden administration is expected to propose a federal law, as part of a larger Covid-19 relief bill, that would extend the Covid-19 standard’s reach to include those exempted workers. Congress passed a similar law in the 1990s to broaden the coverage of OSHA’s bloodborne disease transmission standard.

Congressional Democrats and worker advocates had called for an OSHA Covid-19 standard for nearly a year. Meanwhile, a handful of states with their own workplace safety agencies—including California, Michigan, and Virginia—enacted Covid-19 protection rules.

As a model for a Covid-19 rule, OSHA has on hand a proposed airborne infectious disease rule originally drafted during the Obama administration, but never issued, in response to the 2009 H1N1 flu virus outbreak.

House lawmakers in 2020 approved a bill, the Heroes Act, which included an outline for a Covid-19 rule.

The Heroes Act and state rules, in general, require employers to treat guidance from the Centers for Disease Control and Prevention or state health departments as requirements.

More Instructions

The executive order also calls for OSHA to review its Covid-19 enforcement efforts and identify areas to impove.

Agency critics have faulted OSHA for proposed fines that are far less than those imposed by some states, the agency’s limited use of the general duty clause, failure to cite employers for willful violations, and too often inspecting employers without visiting workplaces, instead relying on phone calls, emails, video conferences, and photographs.

The order also calls for OSHA to issue revised Covid-19 guidance by early February, but doesn’t specify what changes should be made. Much of the agency’s guidance is based on recommendations from the Centers for Disease Control and Prevention.

Beyond OSHA enforcement, the executive order instructs other federal agencies that have some workplace safety role—the Departments of Agriculture, Health and Human Services, Transportation, and Energy—to look at how they can protect workers under their jurisdictions.

(Updated with comments from U.S. Rep. Bobby Scott in fifth and sixth paragraphs and executive order language. )

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

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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