What’s ahead for OSHA?

With each new White House administration comes change in Washington.

When President-elect Joe Biden takes office Jan. 20, those changes will include a new approach at OSHA, according to prominent worker safety experts – starting with how to abate the risk of COVID-19 infection among employees in various industries.

“COVID-19 has affected all aspects of the United States,” said former OSHA administrator David Michaels, who directed the agency during the Obama administration and in November was named to Biden’s Transition COVID-19 Advisory Board. “It’s a worker safety crisis. We want to be able to open the economy and expand the economy to get incomes back for so many reasons. But before you can take steps, you need a plan.”

The new administration’s plan is generally expected to begin with OSHA issuing an emergency temporary standard on infectious diseases, requiring employers to take certain measures to protect workers from on-the-job exposure to the coronavirus.

During a November roundtable discussion with Biden, Vice President-elect Kamala Harris, and business and labor leaders, AFL-CIO President Richard Trumka called an enforceable COVID-19-related ETS “one of the best ways OSHA can reestablish its mission … to protect workers. We cannot afford to wait any longer.”

Although protecting workers from COVID-19 likely will be the agency’s highest priority, OSHA’s plate under the new Biden administration will be quite full.

Tackling COVID-19

Under the Trump administration, OSHA published more than 20 interim guidance documents related to COVID-19 for various occupational groups, including airline operations, construction, retail, oil and gas, and manufacturing. According to the agency’s website, however, the documents “are not a standard or regulation, and create no new legal obligations.”

To some, this doesn’t ensure employers follow the worker safety recommendations, and fuels the need for a strong, comprehensive ETS from OSHA.

“We need a strong rule from the top,” Travis Parsons, associate director of occupational safety and health for the Laborers’ Health and Safety Fund of North America, said during a Nov. 19 National Safety Council webinar on the future of OSHA. “That would set the expectations for everyone – for workers and employers across the board. We have good and bad actors out there, and, unfortunately, the bad actors aren’t going to follow just guidelines.”

Jane Terry, vice president of government affairs at NSC, pointed to ETSs recently enacted in California, Michigan, Oregon and Virginia.

“The work that’s been done in the states that have an ETS in place will likely be a good guide,” she said during the webinar.

Kevin Cannon, director of safety and health services for the Associated General Contractors of America and chair of OSHA’s Advisory Committee on Construction Safety and Health, added that having multiple states with an ETS has added some hurdles for AGC, which has members in all 50 states.

“We have members complying with the Virginia rule, with the Michigan rule, the Oregon rule and the California rule,” he said. “It’s inevitable that early on (in the new administration) we’ll see an ETS for COVID-19.”

During Michaels’ tenure, OSHA was working on an infectious diseases standard to protect health care workers. That work could be revived, the experts said, and expanded to include numerous occupations.

However, the safety and health of workers amid the COVID-19 pandemic isn’t just the job of one federal agency, Michaels said during a Nov. 11 webinar hosted by the University of Colorado Center for Bioethics and Humanities.

“It has to be beyond OSHA,” he said. “We have to be thinking about an all-government effort led by the Labor Department. You can be very successful involving other agencies. Hopefully, we’ll start to see that in January.”

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Added enforcement

Also expected: Ramped-up OSHA enforcement. During his campaign, Biden called on the agency to “double the number of OSHA investigators to enforce the law and existing standards and guidelines” in his “4-Point Plan for Our Essential Workers.”

OSHA conducted 33,401 inspections in fiscal year 2019 – the largest total during the Trump administration and the most since 35,820 were conducted in FY 2015. However, the number of OSHA inspectors has fallen over much of the past four years.

According to OSHA data acquired via a Freedom of Information Act request and published Nov. 27 by Bloomberg Law, the agency’s 790 inspectors in FY 2020 was the highest total during the Trump presidency. However, this number is well below the 860 inspectors OSHA had in FY 2014. The agency’s 752 inspectors in FY 2019 was the lowest total in its nearly 50-year history.

Cannon said he hopes OSHA can strike a balance between additional enforcement and other beneficial programs.

“I could see an increase in enforcement,” he said, “but I’d like to see that balanced with a focus on cooperative programs, alliances, partnerships and the consultation services.”

Crystal ball of regulations

The Trump administration has focused heavily on deregulation over the past four years, but that could turn around under Biden.

“You’re going to see a lot going on in the first month, from an OSHA perspective, in the Biden administration,” said Edwin Foulke Jr., an Atlanta-based attorney who led OSHA from April 2006 to November 2008 under the George W. Bush administration.

Along with a COVID-19-focused ETS that would require employers to provide workers with masks, implement physical distancing and establish cleaning/sanitation protocols to mitigate the virus, Foulke said he anticipates OSHA will place more focus on items that weren’t priorities under Trump. These include changing course on the rollback of electronic recordkeeping requirements, issuing more press releases announcing penalties levied against employers who have been cited for violations of standards and more enforcement of the anti-retaliation rule in OSHA’s Whistleblower Protection Program.

“These are all Day One things,” Foulke said. “It’s going to be happening on Jan. 20, so employers need to be aware of that.”

Other work on standards could include tree care, ergonomics, heat stress, workplace violence in health care and emergency response/preparedness.

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OSHA leadership

Loren Sweatt has served as OSHA’s acting administrator since July 2017 – the longest tenure for an acting leader in the agency’s history. OSHA has been without a permanent leader since Michaels stepped down in January 2017.

“We’d love to see a head of OSHA so they can get things moving a little more at the federal level,” Parsons said. “Everyone knows we haven’t secured a head of OSHA in the current administration.”

Trump nominated retired FedEx Ground executive Scott Mugno three times for the assistant secretary of labor position, but Mugno was never confirmed. After two years of waiting, Mugno in May 2019 withdrew his name from consideration.

“That was unfortunate,” Foulke said of the Mugno stalemate. “Because of that, the agency has never really had the direction it needs. It impacted them dramatically.”

However, Foulke said he expects the Biden administration to move quickly on appointing an acting administrator before nominating an assistant secretary.

“Then they can go ahead and start,” Foulke said. “They have a political person who can direct the agency and start moving quickly.”

Seeking greater input from occupational advisory committees – such as the National Advisory Committee on Occupational Safety and Health, the Federal Advisory Council on Occupational Safety and Health, and the Maritime Advisory Committee on Occupational Safety and Health – also could be an early goal for the Biden administration.

No matter what OSHA prioritizes, the experts agreed that change will happen swiftly. “The quickness of the changes from the Biden administration are going to be faster than any other administration,” Foulke said.