What a New Presidential Administration Could Mean for OSHA

A new presidential administration could mean a revamp and strengthening of OSHA soon after President-elect Joe Biden takes office. The Washington Post reports that immediate actions could include ramping up inspections, filling vacancies and creating a safety standard that workplaces would be required to follow during the COVID-19 pandemic. As an employer, it’s a good idea to take action and be prepared for what a new presidential administration could mean for OSHA, both in the long and short-term.

1. An emergency temporary standard for COVID-19

This means specific and enforceable guidance on what to do to reduce the spread of COVID-19 in the workplace including social distancing, hand-washing breaks, communication during outbreaks and ventilation. Employers should be proactive and make sure that safety policies and procedures comply with CDC guidance.

2. Staffing and personnel updates including appointing a head of OSHA, restoration of advisory committees and doubling the number of OSHA inspectors

The Biden administration plans to appoint all political and permanent positions within OSHA. This means advisory committees and boards will be fully staffed and meet regularly including committees on construction safety and health, maritime safety and general industry safety. In addition, federal OSHA is expected to work closely with state OSHA plans on more aggressive enforcement. Overall, for employers this means enforcement will be stepped up once staffing vacancies are filled.

3. Finalization of a permanent infectious disease standard

Such a standard was prepared following the H1N1 pandemic by the Biden-Obama administration. Given that the COVID-19 pandemic has had such an impact on the U.S. workforce, signs point to a permanent standard being established in case any future pandemics strike says Fisher Phillips

4. Restoration of OSHA’s original electronic reporting rule

Back in 2017, we wrote about OSHA’s intent to update employer requirements for injury and illness data recordkeeping through required electronic submissions. When President Trump took office, this rule was largely abandoned, though never repealed. This means that the original rule could be brought back, so employers should be ready in case.

5. Enforcement of OSHA’s anti-retaliation rule

In 2016, OSHA’s final rule (29 C.F.R. 1904.35(b)(1)(iv)) amended a federal law and added a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. A notable item that Fisher Phillips points out is “that blanket automatic post-accident drug testing is improper because it has been shown to discourage employees from properly reporting injuries.” This was largely not enforced by the Trump administration, though the rule was not repealed. Beginning in 2021, this rule could be enforced, meaning that employers should carefully reconsider any blanket post-accident drug testing policies and drug tests and take on a more reasonable suspicion-based standard. 

6. Increased General Duty Clause citations for COVID-19 violations

OSHA’s General Duty Clause states that “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” This clause is used where there is no OSHA standard that applies to a particular hazard. In this case, it would be the COVID-19 pandemic.

Of course, these are just predictions, but overall, it is safe to assume that workplace safety enforcement under OSHA will be more vigorous. As employers, it is important to provide a safe workplace for your employees while also remaining compliant with OSHA rules and regulations.

If you have any questions about what a new presidential administration could mean for OSHA, contact the Risk Management Team at Rose & Kiernan, Inc. here or by calling (800) 242-4433.

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