COVID-19 AND THE CONSTRUCTION INDUSTRY

Here's How You Can Protect Your Business
Phone

How OSHA May Change Under a Biden Administration

During his campaign for presidency, Joe Biden made it clear that making changes to the American workplace was among his main priorities. As he takes office on January 20, 2021, you should prepare for managing your workforce under new regulations.

Appointing More OSHA Inspectors

Around ten years ago, more than 1,000 OSHA inspectors were in place, but in recent years that number has fallen to approximately 760. Biden has often expressed the need for more inspectors and more enforcement of guidelines. So, as the new administration settles in, Biden will likely increase—perhaps even double—the number of inspectors. Although the hiring and training process could take more than a year, after that, you can expect a larger group to be monitoring the safety regulations at your workplace.

Naming OSHA Leadership Roles

Under the Trump Administration, no one served as head of OSHA. President Trump had nominated Scott Mungo as Assistant Secretary of Labor for OSHA, but Mungo eventually withdrew his name after months and months of a stalled confirmation process. Biden will likely move quickly to fill this role, and some believe his nominee will have strong ties to organized labor. You can bet that Biden will also restore and fully staff the OSHA advisory committees and boards.

Reinstating the Electronic Reporting Requirement

In 2017, OSHA adopted a rule requiring many employers to report worker illness and injury information to OSHA. The intent was for OSHA to then post this information on its website for public access. The rule was not enforced while President Trump was in office, but it probably will be under President Biden.

Expanding General Duty Clause Citations

OSHA can cite businesses for violation of the General Duty Clause (GDC) when a significant and recognized hazard exists in the workplace, but reasonable steps have not been taken to prevent or alleviate the danger. The GDC is enacted when no OSHA standard applies to the particular hazard. The COVID-19 pandemic is an example of such a threat.

In reaction to the H1N1 pandemic, the Obama Administration instructed OSHA and the Centers for Disease Control and Prevention (CDC) to provide safety guidelines to employers and issue GDCs for enforcement. However, during the COVID-19 pandemic, OSHA issued GDC citations sparingly. Under the Biden Administration, we will likely see the GDC process ramp up.

Setting a Permanent Infectious Disease Standard

Following the H1N1 pandemic, the Obama Administration proposed an infectious disease standard, which would have required healthcare facilities and other employers to implement infectious control programs to protect U.S. workplaces. Based on the unprecedented impact of the COVID-19 pandemic, the Biden Administration will likely renew the push for a permanent infectious disease standard. Even if COVID-19 abates in the months to come, many will argue that a permanent standard is necessary to protect Americans from future, possibly more dangerous pandemics.

Encouraging Federal and State OSHA Cooperation

Over the last few years, some state OSHA offices have resisted adopting federal OSHA policies, including increased penalties. Meanwhile, during COVID-19, some states have created their own emergency standard since there was no federal directive. When Biden assumes office, he will likely ask for more coordination and consistency between federal and state offices, so you may see state offices issuing more citations.

We should all expect that OSHA’s workplace safety enforcement will increase under a Biden Administration. Now is the time to ensure that your health and safety programs are in place and compliant, so you are prepared for future visits from an OSHA inspector.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.