Posted On: January 28, 2021

OSHA Regulation Changes: Biden Executive Order Updates OSHA Rules

What is Biden's OSHA Executive Order About?

On his first full day in office, President Biden issued ten COVID-related executive orders.

One of them was titled Protecting Worker Health and Safety, and it directs the Occupational Safety and Health Administration (OSHA) to release new guidelines for employers to protect workers from COVID-19 transmission on the job.

How Does the Biden Executive Order Change OSHA Regulations?

The Biden executive order calls for several coronavirus updates. It calls on OSHA to:

  • Release guidance to employers on workplace safety during the pandemic
  • Evaluate whether emergency temporary standards are needed for COVID-19
  • Review enforcement efforts related to COVID-19
  • Focus enforcement efforts on violations that put the most workers at serious risk
  • Focus enforcement efforts on violations of anti-retaliation principles
  • Conduct a multilingual outreach program about coronavirus guidelines

The executive order also directs OSHA's parent agency, the Department of Labor (DOL), to coordinate with other agencies that protect worker safety, since OSHA doesn't apply to some categories of workers.

The DOL must coordinate about COVID-19 worker safety with the:

  • Departments of Agriculture (USDA), Health and Human Services (DHHS), Transportation (DOT), and Energy (DOE), as well as the Mine Safety and Health Administration (MSHA) and "any other appropriate agencies."
  • State occupational safety and health (OSH) agencies to ensure that those plans are consistent with OSHA's guidance or temporary standards.
  • State and local governments in states that don't have OSH plans to protect public sector workers not covered by federal OSHA.
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OSHA Regulation Changes: What Are the Next Steps?

The OSHA executive order requires the agency to release updated coronavirus guidelines for employers within two weeks of its signing, so you can expect those by February 3rd.

If OSHA decides that emergency temporary standards are needed (which it almost certainly will), then the agency has to issue those emergency standards by March 15th.

Eventually, you can also expect the Biden Administration to finalize a permanent infectious disease standard. The Obama Administration began developing one due to the increasing likelihood of a pandemic, but once he left office, the issue was abandoned. Biden will probably pick up where they left off.

Once finalized, the permanent infectious disease standard would replace the emergency temporary COVID-19 standard.

What could These Coronavirus Updates Mean?

The emergency temporary standard may mandate mask-wearing, social distances, hand-washing requirements, and more.

You can also expect stricter enforcement, heftier fines, closer tracking of outbreaks, and hopefully, a reduction in COVID-19 cases.

Why is a Coronavirus Update Being Ordered for OSHA?

OSHA's oversight was weak under the previous administration, especially in the case of coronavirus guidelines. This led to spotty protections – it was up to individual companies or store managers how well-protected their workers were.

Early on, we knew that the issue of COVID-19 being recordable or reportable was a thorny one. However, by April 10, 2020, OSHA announced that that it wouldn't enforce record-keeping of COVID-19 cases without "clear evidence" that the infection was work-related.

It essentially limited COVID-19 recordkeeping to employers in health care, emergency response, and prisons.

The previous administration also failed to issue an enforceable COVID-related emergency temporary standard. Instead, it issued coronavirus guidelines with weak language that urged employers to "consider" certain measures "if feasible" and "where possible."

These guidelines were virtually unenforceable due to the language, but the administration also limited inspections to health care and emergency response environments.

Most COVID-related OSHA complaints were dealt with via phone/fax investigation, and even cases that involved worker deaths resulted in fines as low as $15,500.

Biden's administration intends to ramp up workplace safety regulations related to COVID-19 and their enforcement.

Other Possible Biden OSHA Changes: Promises from the Campaign Trail

Issuing standards for COVID-19 is actually only one of Biden's OSHA-related promises.

Here are other OSHA regulation changes President Biden discussed on the campaign trail that may be coming soon.

Biden Will Restore OSHA Leadership

The previous administration hasn't had a permanent head of OSHA since 2019. At least one advisory committee was scrapped entirely, and the work of others ground to a halt.

These offices will almost certainly be up and running upon confirmation of Biden's appointees.

Biden Will Likely Enforce Obama's Injury/Illness Recordkeeping Updates

In 2016, the Obama Administration amended the Injury and Illness Recordkeeping Rule with two provisions: electronic submission and anti-retaliation.

In the past, only death, in-patient hospitalization, amputation, or loss of an eye had to be reported to OSHA promptly. Other injuries or illnesses had to be recorded and kept on-site, but they were only reviewed during OSHA inspections.

Obama's rule requires electronic submission of injury and illness records from employers with over 250 workers in a single location. These records are to be publicly posted and used by OSHA to better direct their enforcement efforts.

The other addition to recordkeeping aims to prevent retaliation for reporting injury or illness.

OSHA whistleblowers and complainants have been protected from retaliation for years, but the 2016 rule regulates disciplinary and incentive programs to remove any barrier to accurate records. This includes, among other things, making drug testing after an accident contingent on reasonable suspicion, rather than automatic for everyone.

Biden Will Likely Increase Cooperation/Oversight for State OSH Plans

States with their own OSH plans have fallen out of sync with federal OSHA in the last four years, with some refusing to adopt OSHA regulation changes even though they're required by law to meet or exceed federal standards.

Once OSHA is functioning at full speed, look for the Biden administration to enforce OSHA updates to state plans.

Biden May Hire More OSHA Inspectors

The number of OSHA inspectors has been falling for a decade, and Biden talked about "doubling" the number of inspectors when he was campaigning.

It's worth noting that new inspectors wouldn't actually be trained and ready for at least 18 months, once hired.

Bottom Line

Any changes Biden brings to OSHA will almost certainly need to be reinforced with training from a reputable provider.

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