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Key to Biden OSHA Transition, Virus Rule Is Naming Deputy First

Nov. 23, 2020, 9:39 PM

The most important OSHA appointment the Biden administration could make in its first days is filling the agency’s No. 2 post, a job that doesn’t require Senate review, advocates and former agency officials say.

“Naming a deputy assistant secretary on day one is key,” said Katie Tracy, a senior policy analyst with the Center for Progressive Reform in Washington. Filling the deputy post would send a strong signal that the Biden administration considered worker safety a priority and wanted a quick start, Tracy added.

The Biden administration has committed itself to quickly enacting an emergency temporary standard to protect workers from coronavirus infections. But it could take months to fill the top spot at the Occupational Safety and Health Administration, the assistant secretary of labor for occupational safety and health, because it requires Senate confirmation.

Confirming OSHA assistant secretaries has been a slow process, regardless of which party controls the White House and Senate.

The Trump administration nominee, former FedEx Ground Safety Director Scott Mugno, withdrew from consideration after waiting 19 months for a vote from the Republican-controlled Senate while the GOP focused on judge confirmations and Democrats blocked Mugno’s quick confirmation. Loren Sweatt, OSHA deputy secretary, was appointed in July 2017 and has been the agency’s top administrator ever since.

In 2009, the Democrat-controlled Senate took four months to complete its review of Obama-nominee David Michaels and finally approve him in December 2009.

First Task

The politically appointed deputy’s first assignment could be getting the emergency rule enacted and beginning work on a permanent rule.

“The deputy can get an emergency temporary standard out the door,” said Deborah Berkowitz, who served as OSHA chief of staff during the Obama administration’s first term and is now a program director with the National Employment Law Project in Washington.

“The sooner the appointment, the better it is for the agency,” said Richard Fairfax, who retired from OSHA in 2013 as the agency’s career-service deputy assistant secretary and is now a consultant in Frederick, Md.

Fairfax said OSHA career staff members can’t decide on their own to begin drafting an emergency rule—that decision must come from political leadership at the U.S. Department of Labor—and that work on a rule could start during the Trump administration if the DOL approved.

Secretary of Labor Eugene Scalia has repeatedly said he doesn’t believe a Covid-19 rule is needed because OSHA requirements dealing with N95 masks and blood-borne diseases, and the general duty clause requirement for safe workplaces, are adequate.

Rule Roadmap

The 1970 Occupational Safety and Health Act briefly lays out the requirements for enacting an emergency temporary standard.

The law says for an emergency standard to proceed, the secretary of labor must declare that employees are “exposed to grave danger” from new hazards and that the emergency standard is necessary to protect employees from the danger.

The law doesn’t require a public comment period for the rule and the standard would take effect immediately when published in the Federal Register.

Within six months of enactment of the emergency standard, OSHA would have to promulgate a permanent rule, a process that would include public comment, according to the OSH Act.

Congressional Democrats have called for a rule written in consultation with the national Centers for Disease Control and Prevention, employee representatives, and professional associations.

Marc Freedman, vice president for employment policy at the U.S. Chamber of Commerce in Washington, said he hopes the Biden administration would ask for employer input as well before issuing a rule.

If a temporary rule is approved, Freedman said, OSHA should make provisions to allow employers time to come into compliance. The House’s Covid-19 relief bill, the Heroes Act, calls for a Covid-19 rule and says OSHA should “exercise discretion in enforcement” if employers show “due diligence to come into compliance.”

A possible parallel to a Biden administration Covid-19 rulemaking is OSHA’s 2009 response to the less dangerous H1N1 virus, commonly known as swine flu. Jordan Barab, a congressional staff member and former union safety official, was appointed the political deputy secretary in April 2009. OSHA’s assistant secretary nominee, David Michaels, a public health professor at The George Washington University, wasn’t confirmed by the Senate until December 2009.

During that months-long gap, OSHA under Barab issued prevention guidance for H1N1 and began an airborne infectious disease rulemaking. The rule is still unfinished.

Beyond Virus Standard

In addition to the Covid-19 rule, the deputy secretary also could begin reviews of OSHA policies enacted by the Trump administration that could be quickly reversed, Tracy said. Those policies include not issuing press releases on individual inspections and only providing citation documents through Freedom of Information Act requests.

Fairfax said there could also be a review of OSHA enforcement policies for Covid-19 cases in which the agency has issued no willful citations.

A willful violation carries a maximum fine of $134,937. A serious fine is capped at $13,494.

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; Karl Hardy at khardy@bloomberglaw.com

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