Bloomberg Law
Feb. 3, 2021, 9:01 AM

Employers Should Get Ready for More OSHA Enforcement Under Biden’s DOL

Edwin G. Foulke
Edwin G. Foulke
Fisher Phillips LLP

Based on his promises during his campaign and his actions since he was elected president, President Joe Biden has sent a clear message that the Occupational Safety and Health Administration will be much more aggressive with respect to worker safety and health during his administration.

The nomination of Boston Mayor Marty Walsh to be the next secretary of the Department of Labor, as well as the upcoming nomination of California Labor Secretary Julie Su to be deputy secretary, and the naming of Jim Frederick as acting head of OSHA, demonstrates the significant role organized labor will play at the department.

The speed at which Biden’s administration has moved in developing a Covid-19 enforcement strategy, as well as quickly moving to fill the political positions at DOL, especially at OSHA, should put employers on alert to get their worksites in full compliance with all OSHA standards and Covid-19 requirements.

Enhanced Enforcement

Biden has made it clear that he intends to significantly beef up the enforcement effort by OSHA over the next four years. Evidence of this increased focus on enforcement came in the second day of his presidency when Biden signed an executive order on protecting worker health and safety that specifically directs OSHA to increase enforcement of existing agency standards and investigate if a new standard for Covid-19 mitigation is necessary.

With Frederick as the acting head, he can start working with Congress to obtain increased funding for inspectors and to fill inspector slots that are currently funded. Once Covid-19 vaccinations are available to all OSHA inspectors, employers can anticipate a significant increase in the number of on-site inspections that occur, most likely in the spring.

Construction employers should also be particularly concerned since OSHA strongly focuses on construction work sites in the spring and summer months.

Compliance Assistance, With Enforcement

Traditionally, under a Republican president, OSHA places additional emphasis on compliance assistance in addition to enforcement. The Biden administration will likely follow the road that the Obama administration took with respect to compliance assistance where the focus was primarily on enforcement.

With the strong union presence at DOL, compliance assistance in the forms of alliances and partnerships with trade and business associations will most likely include union participation. One question still to be answered is whether OSHA’s Voluntary Protection Program will survive in the Biden administration.

The reduced funding of OSHA over the last several years has resulted in OSHA’s inability to approve new VPP sites. In fact, the number of VPP sites currently in the program is down significantly. A significant increase in funds for compliance assistance is not anticipated, if any at all, which may result in a further reduction in the numbers of VPP sites.

Personnel and Advisory Committees

Biden has not yet nominated an assistant secretary of labor for OSHA, but it is anticipated that he will do so shortly, select a safety professional with close ties to organized labor, and that the nominee will be confirmed.

Biden will also likely focus on ensuring that the four major advisory committees at OSHA are fully staffed and that they start meeting on a regular basis. The new administration is expected to utilize the OSHA Advisory Committees to provide support and approval of regulations being promulgated.

Rulemaking and Legislation

In his Jan. 21 Executive Order on protecting workers health and safety, Biden made it clear that OSHA would look at a need for temporary emergency standards on the pandemic, and for congressional legislation for a mandatory standard.

It will be difficult to determine what a temporary emergency standard for Covid-19 would look like given the executive order’s requirement that the standard be issued by March 15. OSHA worked on an infectious disease standard during the Obama administration, but it is unlikely that such a standard could be implemented that quickly.

The fastest way to develop temporary emergency standards for Covid-19 would be to look to standards already adopted by state OSHA plans in Virginia, Michigan, Oregon, and California. While all of the four have similar requirements concerning actions employer must take, conventional wisdom seems to point toward the adoption of the Virginia OSHA standard, which is now permanent.

With the naming of Joseph Hughes to a newly created position as deputy assistant secretary for pandemic emergence response, employers need to implement a Covid-19 action plan to comply with a likely temporary emergency standard based on CDC guidance.

During the Trump administration, a number of OSHA standards on the books were not fully enforced. It is likely that OSHA’s electronic filing of 300 logs and 301 supporting data will be reinstated with the 300-A Summaries, which will make more information readily available to all interested parties on the OSHA website.

Another likely change will be the reemergence of OSHA press releases on safety and health citations issued to employers. During the last six months of the Trump administration, these releases were for the most part limited to trade announcements and other non-citation matters.

OSHA currently has 21 pre-rule, proposed rule, and final rules on its regulatory agenda. The three final rule proposals all deal with whistleblower issues and it is anticipated these will be published by year-end. Several proposed rules involving communication tower safety, tree care and construction will likely have industry or union support and will move forward quickly.

Based on the speed at which the Biden administration is moving, and the sharp focus on employee protections, employers are well advised to begin preparing for managing the safety and health enforcement that is most likely to arise, particularly with Covid-19 safety policies and procedures.

Continued focus on safety compliance and ensuring that sufficient resources are provided for employee safety and health will allow employers to successfully handle forthcoming enforcement efforts. With new leadership, employers should revisit their workplace safety policies and get ready for an active OSHA for the next four years.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Edwin G. Foulke Jr. is an Atlanta-based partner with the national labor and employment law firm Fisher Phillips. He was the assistant secretary of Labor for OSHA in the Bush 43 administration and chairman of the Occupational Safety and Health Review Commission in the Bush 41 and Clinton administrations.