Under the new Joe Biden administration, OSHA will take a more aggressive approach to regulation enforcement and will quickly step up measures to combat the effects of COVID-19 in the workplace, according to a health and safety-focused law firm.
Lawyers at Conn Maciel Carey made these and other OSHA-related predictions in a webinar that took stock of the agency’s recent past under the outgoing Donald Trump Republicans and looked ahead to what 2021 will look like under Biden’s Democrats.
During the pandemic, OSHA’s enforcement efforts have tended to concentrate on a select few types of citations, asserted partner Kate McMahon. These have largely been healthcare-oriented, with less emphasis on manufacturing-related wrongdoing. Biden’s OSHA will broaden that scope, both by industry and by citation type, using a few well-known methods at its disposal, she said.
“The general duty clause is an available tool that we think the Biden administration may use to bring a broader range of citations for companies that are not doing their part in assuring that transmission is controlled as best as possible in the workplace.”
This clause essentially compels employers to identify and correct any health or safety hazards, even if those hazards are not covered under an existing OSHA standard.
Another enforcement tool could come in the form of an Emergency Temporary Standard (ETS), which McMahon said she would “put my money on” seeing within the first 100 days of Biden’s presidency. Although it’s not yet clear what that ETS might look like, McMahon speculated that it would likely take one of two paths.
The first would be to build on the Permanent Infectious Disease standard that OSHA was developing during Barack Obama’s second term. A final report was issued but the legislation was pushed aside due to other priorities. Nevertheless, that report “gives us some clue as to some pieces of what we might see” in a COVID-driven ETS, McMahon added.
The second potential path would see the ETS being modelled on some of the state plans that have already come into effect, such as that in California.
OSHA and the COVID-19 Task Force
The new regime’s efforts to combat the effects of COVID-19 on workplace health and safety will also be fueled by a reinvigorated COVID-19 task force. This was set up earlier in 2020 while Trump was in office but has not been as prominent in recent months, said McMahon.
Noting that Biden named a task force of 13 people only half a month after winning the election in November, McMahon pointed out that a key addition was Dr. David Michaels, former assistant secretary of labor for OSHA under Obama.
This signals a tight link between the task force and the agency and, by extension, a strong push for COVID-related health and safety legislation.
The pandemic made 2020 a year like no other for most organizations, and OSHA was no exception. The agency received 61,190 COVID-related employee complaints or referrals during the year, “which dwarfs the total number of complaints OSHA generally gets in a year across all subjects,” noted partner Eric Conn.
OSHA adopted what partner Aaron Gelb described as a “relatively relaxed enforcement posture” for both COVID-related complaints and any other standards that required in-person contact. Indeed, most of the COVID-related complaints did not result in an inspection. In states particularly hard hit by the pandemic, added Gelb, area offices tended to conduct only virtual inspections.
OSHA’s reduction in field activity was offset by increased efforts on development of guidance to help employers navigate this unprecedented new hazard in their workplaces. Conn said these uncommon circumstances, however, should be “just a blip,” with 2021 looking more like prior years, “not just due to a transition to a Biden administration, but also because we understand COVID a little bit more now. We see OSHA has (already) gotten more active in the field in the latter half of 2020 and the beginning of this year.”
One area that employers can expect to see little change is around repeat violations. The Obama administration widened the scope of these by counting violations that occurred at any of a company’s facilities, rather than just a single location. They also extended the window for qualifying violations from three years to five.
Most expected these measures to be reversed under the Trump regime. Primarily due to a void in leadership an OSHA during those four years, however, this never happened. Observers can expect the same steadily upward trend of repeat violations to continue under Biden.
Conn noted that this gradual rise has been seen over the past two decades.
“Almost 20 years ago, about two percent of violations were characterized as repeat. Now it’s consistently up over five percent. That’s a big deal, because those violations carry penalties up to 10 times higher than serious and other-than-serious violations.”
Another OSHA surprise that came out of the Trump era involved the issuance of enforcement press releases. Obama’s OSHA had dramatically increased the number of these releases – an average of 463 per year as opposed to approximately 150 under the previous George Bush administration. Inflammatory language that Conn described as “blasting” the accused employer was also added under Obama. While OSHA under Trump did reduce the number of these releases, the “inflammatory and nasty” quotations from OSHA officials remained.
“So we don’t need to project whether we’ll transition back to that during a Biden administration because they never got rid of that (under Trump),” Conn said.
Other OSHA-related measures the speakers asserted we can expect to see under the Biden administration include:
- A significant increase in the agency’s budget and staffing.
- A renewed push on OSHA reform legislation, known as the Protecting America’s Worker Act, which has a 17-year history. The act would, among other things, increase civil penalties, expand circumstances that may be charged criminally, ease the ability to prosecute individual managers, and expand survivors’ rights.
- Resumed attacks on Voluntary Protection Programs. Partner Micah Smith asserted that the VPP, which can exempt organizations that achieve a certain standard of health and safety protection from routine inspections, is traditionally viewed by Democrats as “just a way of being soft on employers and allowing them to get away with full participation with the agency.”