Emergency Rule, More Enforcement Forecast for OSHA Under Biden

Occupational safety experts and attorneys say OSHA, under President-elect Joe Biden, will have the look and feel of an Obama-era federal safety agency, and less like the administrator-less, laissez-faire prone Trump administration edition.

They anticipate increased enforcement by the Occupational Safety and Health Administration, more whistleblower protections for workers and the immediate declaration of an emergency temporary standard to combat the coronavirus pandemic. Biden will also get the chance to name a new member to the three-person Occupational Safety and Health Review Commission, giving Democrats a 2-1 majority on the panel responsible for adjudicating appeals of OSHA citations and penalties.

Worker advocates and unions have blasted President Donald Trump‘s now outgoing administration for how it’s handled worker safety regulations during the pandemic, while business attorneys claim ever-changing national Centers for Disease Control and Prevention guidance has made OSHA’s role in maintaining safe work environments almost impossible.

“Everyone has clearly recognized fed OSHA hasn’t issued any rules on Covid-19 workplace safety,” Sean Egan, Michigan OSHA’s director of Covid-19 workplace safety and deputy director for labor told Bloomberg Law. “The election of Biden may encourage that to happen.”

The federal workplace safety regulator received 9,818 workplace complaints of Covid-19 hazards through Oct. 28 and closed 9,296 investigations, according to its enforcement database. State plans have received 31,365 complaints and closed 24,696 cases in the same time frame, the database shows. OSHA may close a case when a company abates an existing hazard or finds no hazardous conditions, among other scenarios.

Emergency Temporary Standard

Labor Secretary Eugene Scalia’s department has declined to enact an emergency temporary standard, relying instead upon the general duty clause contained in the 50-year-old Occupational Safety and Health Act to cite employers for hazards caused by exposing workers to Covid-19.

The clause requires employers to have workplaces free of known hazards that can be feasibly mitigated. OSHA uses it to cite employers when there isn’t a specific rule covering the alleged hazard.

Lawsuits that sought to force the federal agency to issue an emergency measure failed. Now, several states, including Virginia and Michigan, have instituted their own rules. Oregon and California are set to finalize their emergency temporary standards and recently New Jersey Gov. Phil Murphy implemented Covid-19 specific statewide worker safety rules through an executive order.

Deborah Berkowitz, worker health and safety program director with the National Employment Law Project—who served as OSHA chief of staff during the Obama presidency—says a potential Biden administration will likely include an OSHA administrator who would make it a priority to establish that emergency rule, though she declined to speculate on who that person could be.

Loren Sweatt, the Labor Department’s principal deputy assistant secretary for occupational safety and health, has been in charge of the agency since July 2017. A permanent assistant secretary requires U.S. Senate confirmation. Trump in October 2017 nominated retiring FedEx Ground safety director Scott Mugno, but after 1 ½ years without a Senate vote, Mugno withdrew his name.

Increased Enforcement

Courtney Malveaux, co-leader of the Workplace Safety and Health Practice Group and Construction Industry Group at Jackson Lewis P.C., says citations and fines and other forms of enforcement may increase under the Biden administration.

“Certainly Democratic administrations come with more emphasis on enforcement,” he said. “And while I would anticipate a push for an emergency temporary standard, in the meantime, I would also anticipate more emphasis on respiratory and PPE standards, as well as the broader use of the general duty clause which applies to hazards not anticipated.” PPE is shorthand for personal protective equipment.

Respiratory protection citations have emerged as OSHA’s top enforcement tool during the pandemic.

“I would expect a Biden OSHA to look a lot like the Obama OSHA,” with “heavy reliance on enforcement as way to demonstrate their seriousness,” Marc Freedman, vice president of workplace policy at the U.S. Chamber of Commerce, said in an interview.

Rebecca Reindel, director of occupational safety and health for the AFL-CIO, told Bloomberg Law that under Biden, “ensuring strong enforcement that reflects the magnitude of the problem,” would be expected with a Democratic presidency.

“Clearly, the citations issued under the Trump administration do not reflect the magnitude of situation where many workers have died,” Reindel said.

More than 231,000 Americans have died from Covid-19 according to Bloomberg News data. Essential workers have seen much of the brunt of the virus. The AARP conducted an analysis of Centers for Medicare & Medicaid Services October data, which shows that almost half of the staff at American nursing homes have been infected with the coronavirus.

Whistleblower Protections

With OSHA operating with the fewest inspectors in its history, Berkowitz said employees will take on a much bigger role in keeping workplaces safe, and that enhanced whistleblower protections provided by a Democrat-led Congress will be at play.

“The least Congress can do is pass legislation that protects workers,” she said. “Workers should have other remedies if OSHA can’t protect them.”

Berkowitz referred to the Protecting America’s Workers Act, initially introduced in 2017 by Rep. Joe Courtney (D-Conn.), the bill would, among other things provide increased protections for whistleblowers who provide information and cooperate with OSHA inspections. With a Democrat-controlled Congress, the likelihood a measure like that could pass would be much higher, she said.

“I think there’s a common perception that OSHA is always in workplaces and they always know what’s going on, but we know during the pandemic that there have not been inspectors going onto work sites to look at working conditions,” Reindel said, adding that whistleblower protections are a hope for advocates and unions.

“At the end of the day, workplace safety should not be so politicized and/or weaponized,” the Chamber’s Freedman said. “There should be common agreement on at least the end goal. The debate is how do you get to end goal.”