Expect these 8 changes to OSHA under the Biden administration

According to a report by JD Supra:

  1. Create An Emergency Temporary Standard For COVID-19.

Biden likely will work with unions and other worker advocacy groups to develop a COVID-19 standard if the pandemic continues to impact worker safety in early 2021, especially if no vaccine is immediately available. Employers should begin taking actions now to ensure their safety policies and procedures are compliant with CDC guidance, including these often-misunderstood guidelines.

  1. Double The Number Of OSHA Inspectors.

There are roughly 761 OSHA inspectors working right now, compared to about 1,000 or so who were in place a decade ago. If the Biden administration begins hiring additional investigators immediately, it likely will take around 18 months for the new inspectors to be trained and begin conducting inspections. Once those new compliance officers are in the field, employers can expect more OSHA inspectors knocking on their door.

  1. Appoint A Head Of OSHA And Restore Advisory Committees.

Expect Biden to immediately fill the Assistant Secretary of Labor position assigned to OSHA, likely with a safety professional with close ties to organized labor. Biden will also ensure that OSHA’s advisory committees and boards are fully staffed and meet regularly. This includes committees on construction safety and health, maritime safety, and general industry safety.

  1. Restore The Original Electronic Reporting Rule.

Under a rule originally adopted under Obama-Biden administration in 2017, OSHA began requiring certain employers (including those with more than 250 employees at a single location) to, among other things, report employee injury and illness information to OSHA. The safety agency planned to post this information online for public viewing on its website. However, this rule was largely abandoned when Trump took office.

Biden may look to resurrect the original version of the rule, which was never repealed by Trump, and force certain employers to report detailed employee injury and illness information (including the information found on OSHA 300 Logs) to OSHA. Absent a successful legal challenge, the agency would then make the information available to the public by posting it online.

  1. Increase General Duty Clause Citations For COVID-19 Violations of CDC Guidelines.

The GDC is used only where there is no OSHA standard that applies to the particular hazard, like the COVID-19 pandemic. The elements of a violation of the GDC are:

  • the employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  • the hazard was recognized;
  • the hazard was causing or was likely to cause death or serious physical harm; and
  • there was a feasible and useful method to correct the hazard.

Look for OSHA under a Biden administration to immediately begin issuing more GDC citations if employers violate CDC guidelines for health and safety concerns related to the ongoing pandemic.

  1. Finalize A Permanent Infectious Disease Standard.

Given the significant impact of the COVID-19 pandemic on the American workforce, look for the Biden administration to resurrect the proposed infectious disease standard and push for its adoption, even if the COVID-19 pandemic ends early in his tenure. An employee safety-focused administration will argue that the permanent standard is needed in case any future pandemic strikes the United States.

  1. Foster Greater Cooperation With And Stricter Oversight Of State OSHA Plans.

Federal OSHA and the 22 state OSHA plans haven’t always seen eye-to-eye, and that notion has been exaggerated over the last 4 years. Under a Biden administration, expect federal OSHA to work more closely with the state OSHA plans and seek more aggressive enforcement from their state counterparts. This could lead to additional pressure to increase the state plans’ penalties, enforce the 2016 federal OSHA anti-retaliation rule, and require employers to post electronically their OSHA 300 data.

  1. Enforce The 2016 OSHA Anti-Retaliation Rule.

In 2016, OSHA published a final rule that, among other things, amended federal law to add a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. The 2016 rule indicated, among other things, that blanket automatic post-accident drug testing is improper because it has been shown to discourage employees from properly reporting injuries.

OSHA clarified its position in October 2018, providing that “action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

Despite the 2018 clarification, the original version of Obama-Biden rule is still in effect. A Biden administration likely will begin enforcing the rule beginning in January 2021. Thus, employers may want to carefully reconsider any blanket post-accident drug testing policies and drug test rather when “employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use,” thereby taking on a more reasonable suspicion-based standard.