On January 21, 2021, President Biden issued an Executive Order on Protecting Worker Health and Safety (Order)1 directing the Occupational Safety and Health Administration (OSHA) to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.” The Order instructs OSHA to issue revised, science-based guidance by February 4, 2021, and to consider issuing emergency temporary standards by March 15, 2021.
Notably for employers, the Order also directs OSHA to evaluate increased enforcement and improved coordination with state and local governments. Under the Trump Administration, OSHA faced criticism from union officials and labor advocacy groups for a perceived hands-off approach related to the COVID-19 pandemic. The Order is intended to result in clearer guidance to employers about how best to protect their workforces, though it also introduces the specter of increased inspections, citations, and penalties. The key provisions of the Order are outlined below.
Guidance Regarding Workplace Safety
The Order directs OSHA to issue the guidance within the next two weeks (by February 4, 2021) and explains that the guidance must be grounded in science-based recommendations on how to keep workers safe from COVID-19 exposure. It is anticipated that OSHA will also place a renewed emphasis on reporting and recordkeeping requirements that were relaxed during the Trump Administration. Similarly, employers should be mindful that the guidance may provide early insights into changes in OSHA’s inspection and enforcement approach.
Emergency Temporary Standards
In addition to the near-term guidance, the Order also directs OSHA to consider issuing emergency temporary standards to address COVID-19 workplace protections. OSHA has statutory authority to promulgate both permanent and emergency temporary occupational health and safety standards.2 OSHA may enact emergency temporary standards when the agency determines that “employees are exposed to grave danger” and “that such emergency standard is necessary to protect employees from such danger.”3 Because many workers face potential exposure to COVID-19 in the workplace—in large part due to the transmissibility of the virus—OSHA could determine that risk qualifies as a “grave danger” warranting an emergency temporary standard. In that case, the agency must issue any emergency temporary standards by March 15, 2021. Those standards may reach workers not normally protected under the Occupational Health and Safety Act, including coal and metal or non-metal mines.
The Order specifically directs OSHA to consider mandating mask-wearing in the workplace. Like its forthcoming guidance, any temporary emergency standards must reflect the latest science regarding COVID-19 exposure risk mitigation. OSHA, however, will have greater authority to enforce the emergency temporary standards than its guidance.
As related to mask-wearing and broader disease mitigation, OSHA could opt for an approach that mirrors the standards that several states have issued since the start of the pandemic, such as those in effect in California, Michigan, and Virginia. In that case, the new federal standards would not require significant additional work for employers in those states to achieve compliance. Court battles are likely, though, especially if OSHA issues standards aligned with California’s particularly stringent state OSHA rules, which already have been challenged in court allegedly for having failed to make a proper finding of an emergency justifying standards.
If OSHA decides to issue a temporary standard, the agency would be required to commence proceedings to establish a permanent standard within six months.4 Thus, workplace standards likely will continue to evolve and will warrant close monitoring by employers.
The Order also directs OSHA to review its enforcement efforts. In particular, it instructs OSHA to identify short-, medium-, and long-term changes that could be implemented to better protect workers and ensure equity in enforcement. Additionally, the Order instructs OSHA to launch a national program to focus its enforcement efforts and prioritize violations that put the largest number of workers at risk. There almost certainly will be a strong emphasis on communities that have been hit hardest by the pandemic, which aligns with the Biden Administration’s focus on social justice and racial and economic equity. In addition to the national enforcement effort, OSHA also will coordinate with state and local governments, as well as public employee unions, to bolster workplace safety protections from COVID-19.
This Order signals the Biden Administration’s focus on workplace safety and science-based mitigation measures to battle COVID-19. Of particular note in the flurry of pandemic response executive orders is the indication of increased emphasis on enforcement efforts, particularly in those workplaces and locations where workers are most at risk. Employers should be prepared to quickly adjust to new guidelines and rules as OSHA works to address the dynamic and evolving nature of the pandemic.
WilmerHale’s environmental/OSHA and employment teams are closely following these developments and are available to help employers navigate their compliance obligations.