Biden Calls for OSHA Action on COVID-19
Author: Emily Scace, XpertHR Legal Editor
January 22, 2021
President Biden on January 21 issued an executive order intended to strengthen workplace protections from COVID-19. Calling worker health and safety "a moral imperative," the order directs the Occupational Safety and Health Administration (OSHA) and other federal agencies to take appropriate actions to keep workers safe from COVID-19 exposure on the job.
Specifically, the order directs OSHA to:
- Issue revised guidance to employers on workplace safety during the COVID-19 pandemic within two weeks;
- Determine whether an emergency temporary standard to address COVID-19 in the workplace is necessary and, if so, issue such a standard by March 15, 2021;
- Review OSHA's COVID-19 enforcement efforts and identify changes that could better protect workers and ensure equity in enforcement;
- Launch a national program to focus OSHA's COVID-19 enforcement efforts on violations that put the largest number of workers at serious risk or run contrary to antiretaliation principles; and
- Conduct a multilingual outreach campaign to inform workers and their representatives of their rights under the law, emphasizing communities hit hardest by the pandemic.
Although OSHA issued citations related to COVID-19 with total proposed penalties of $3.9 million in 2020, the agency was widely criticized for not issuing an emergency temporary standard to address the pandemic or engaging in more aggressive enforcement against employers that failed to protect employees from exposure to COVID-19. President Biden's Executive Order signals a likely shift toward a more regulation- and enforcement-centric stance for OSHA, in contrast to the compliance assistance and guidance focus the agency has emphasized in recent years.
The order also directs OSHA to coordinate with states that have federally approved occupational safety and health plans to ensure that workers in these states are adequately protected from COVID-19, consistent with any revised federal guidance or emergency temporary standards.
Twenty-one states and Puerto Rico currently have a state plan covering both private- and public-sector employees, and an additional five states have an occupational safety and health plan that covers only state and local government workers. Several of these states have implemented emergency regulations to address COVID-19 workplace hazards, ranging from reporting requirements to comprehensive standards that require a written plan, employee training, various infection-control methods, and other measures. Compliance obligations for employers in these states have not changed as a direct result of this Executive Order, but state safety agencies may alter their approach to COVID-19 depending on the actions and directions of their federal counterpart.
In the states that lack a federally approved occupational safety and health plan, the order directs OSHA to consult with state and local government entities responsible for public employee safety and health and with public employee unions to enhance protections from COVID-19 for public sector employees.
The order also instructs the Mine Safety and Health Administration (MSHA), OSHA's counterpart for the mining industry, to evaluate the necessity of an emergency temporary standard to address COVID-19 hazards in mining workplaces.