While workplace safety standards have been thrust into the national conversation since the coronavirus (COVID-19) pandemic began, Occupational Safety and Health Administration (OSHA) enforcement has been relatively quiet. That will likely change under a Biden administration.
The Biden administration will likely push for an OSHA emergency temporary standard for COVID-19. There has been significant political pressure for a COVID-19 regulatory framework, and workplace safety and health is one clear avenue where President-Elect Joe Biden has the power to pursue a nationwide standard. Given the diverse workforces that would be covered, we would expect a Biden administration to roll out a performance-oriented standard that allows employers to assess the workplace and job tasks for COVID-19 risk and take commensurate actions depending on potential exposure. For a handful of critical topics, there may also be more prescriptive standards – for example, rules on ventilation, face coverings, occupancy limits, social distancing, and notification.
Right now, even though OSHA has been inundated by complaints, inspections have been fairly general because there is no one specific standard to inspect for compliance. In fact, because of the overwhelming number of complaints – and to avoid unnecessarily exposing OSHA inspectors to COVID-19 risk in the field – OSHA can only conduct a relatively limited number of onsite inspections. Instead, OSHA is responding to complaints in large part by sending employers what are known as informal “phone fax” letters. This gives employers the opportunity to respond in writing to allegations against them related to COVID-19. Employers can submit, for example, a written description of what they are doing to combat COVID-19, any written COVID-19 plan, employee training materials, training logs, and photographs of face coverings and social distancing signs. OSHA often closes out these informal complaints after receiving an employer submission without the need to conduct an onsite inspection.
The change of administration and possibility of an emergency temporary standard could lead to increased inspections and citations by OSHA. If OSHA issues a temporary emergency standard, or even if OSHA just publishes additional COVID-19 guidance, OSHA inspectors would have more concrete rules to enforce. This coupled with a possible increase in the number of inspectors could lead to an uptick in enforcement against employers.
And there already are options for what an emergency temporary standard might look like. As the first state in the nation to enact enforceable workplace safety standards addressing COVID-19, Virginia has been a model that other states have, at least in part, followed. The Virginia standard is quite long, and can be somewhat complicated for uninitiated employers to follow. Other states, such as Michigan, have taken a more streamlined approach. Many companies hope that a Biden Administration will be as clear as possible in the language that it uses for any OSHA emergency temporary standard. This includes providing sample trainings and programs that all employers could adopt and use, and being clear on what needs to be done by when. Virginia has relied heavily on after-the-fact FAQs to guide employers. Hopefully any federal standard will learn from the Virginia FAQs and evolve from common questions faced by employers in the commonwealth. Ambiguity in regulations in the midst of an emergency can lead to chaos and noncompliance.
If a Biden administration does not issue an emergency temporary standard, there could still be a rise in citations under the general duty clause, as President-Elect Biden and his transition team have announced plans to bolster OSHA enforcement as part of their overall COVID-19 strategy. Companies are hopeful that a new administration also will provide employers with the resources that they need to get strong COVID-19 safety and health programs up-and-running through consultations, clear guidance, and model programs and training that employers can easily adopt. This will be particularly important as businesses that were closed for the winter (due to the inability to work indoors and rising COVID-19 numbers) reopen.
One looming question in light of the promising news on vaccines is whether any OSHA emergency COVID-19 standard will address vaccines. For example, OSHA’s Bloodborne Pathogens Standard, 29 CFR 1910.1030, which was issued in 1991 largely in response to the HIV epidemic, affirmatively requires employers to offer the Hepatitis B vaccination to all employees who may reasonably anticipate contact with blood while performing their job duties. Dr. Anthony Fauci and other epidemiologists have warned that a significant percentage of the US population must take the vaccine before the country can return to normal. Assuming that a vaccine receives FDA approval, a Biden administration will have to persuade Americans to take it. And it’s yet to be seen whether the incoming administration will address vaccines in any OSHA emergency temporary standard or otherwise push for vaccines through OSHA enforcement.
All employers should be ready for increased enforcement and new guidelines—or possibly even standards and regulations—on steps employers should take to combat COVID-19.