With any new Democrat presidency comes a variety of changes across government, especially one area of change that will affect thousands, if not millions of employers comes in the form of OSHA regulations and enforcement. While the previous administration maintained the status quo, all signs are pointing to the Biden administration making this a top priority.
Employers should pay attention to several workplace safety initiatives that will likely be implemented early on in the Biden administration.
Expect an increase in OSHA enforcement including the following:
- Expect OSHA to increase staffing under President Biden. The number of OSHA inspectors in the field may double. Current staffing is at the lowest levels in decades. Expect funds to be given to state OSHA programs to increase staffing in addition to the federal increase. This may present challenges as states are required to match these funds.
- Expect a return to counting inspections based on complexity and novelty.
- Expect more inspections of employee hospitalizations, amputations, and eye loss reports.
- Expect a return to press releases for all large penalties, willful violations, criminal prosecutions, and other significant agency actions.
- Expect an increase in inspections that result in large penalties.
- Expect an increase in discrimination enforcement and possible expansion of limits on drug testing following an accident or injury.
- Expect increased focus on incentives that may discourage injury and illness reporting and scrutiny of all incentive programs.
- Expect additional national emphasis programs to be added.
How can employers prepare for Biden’s OSHA?
- Review your written programs to be sure they are in compliance with the current OSHA standard. Common programs include HazCom, LOTO, Bloodborne Pathogens, etc.
- Identify which programs you are required to have, review them, and know where they are if OSHA shows up to conduct an inspection.
- Assure employee training is up to date. Review training you are required to provide and confirm you have training records ready and available.
- Review your OSHA 300 and OSHA 300a and prepare them for posting February 1. OSHA 300 and OSHA 300a records must be maintained at the worksite for at least five years. Each February through April, employers must post a summary of the injuries and illnesses recorded the previous year. Also, if requested, copies of the records must be provided to current and former employees, or their representatives. https://www.osha.gov/recordkeeping
- Submit you records electronically if required by OSHA to do so. https://www.osha.gov/injuryreporting/
- Perform a safety and health audit of your facility to uncover hazards and program deficiencies and take immediate steps to address them.
Employers should begin preparing now for managing a workforce under the Biden administration and ensure their COVID-19 safety policies and procedures are compliant with CDC guidance, in anticipation of these greater enforcement efforts from OSHA during the next four years.
Although it is expected that under the Biden DOL OSHA will adopt an ETS for COVID‑19, some states already have done so, including Virginia, Michigan, Oregon and most recently California. With the Cal/OSHA Chief, Doug Parker, as part of the Biden transition team, California’s recent ETS may be a sign of what’s to be expected under a federal OSHA ETS.
California’s ETS requires a written “COVID-19 Prevention Program,” the elements of which mirror California’s Injury and Illness Prevention Plan requirements. The emergency COVID-19 standard also requires notification of potential COVID-19 exposure within one business day to exposed employees, their authorized representatives, independent contractors, or employers at a worksite. Employers are also now required to maintain medical records related to COVID-19 and provide those records to the state and local health departments and Cal/OSHA upon request and to track all COVID-19 cases in the workplace.
If Biden OSHA does use California’s ETS as a model, employers should be ready to take these actions:
- draft or finalize their COVID-19 Prevention Programs;
- prepare their COVID-19 exposure notification processes and testing protocols; and
- implement new recordkeeping and notification procedures.
The 50-50 split in the Senate does not give Democrats unrestricted ability to legislate on any issues, including workplace safety and health. Assuming the legislative filibuster remains intact, the Biden Administration would need 10 Republicans to support any bills. We do not think that is likely to happen on any legislative changes dealing with OSHA or any other occupational safety and health issues. But the current political environment is different that we have ever seen.
Some of the top candidates make it clear that OSHA will be much more aggressive than what employers have experienced under the last two administrations. Therefore, employers should continue to watch these appointments closely and analyze their safety program to make sure they are in compliance.
In addition, the Biden campaign publicly pledged to “double the number of OSHA investigators to enforce the law and existing standards and guidelines.” The number of Compliance Safety and Health Officers employed by OSHA dropped from 1,016 positions in 2010 to a historic low of 875 inspectors by January 1, 2019. Biden’s campaign declared that “at least twice the number of inspectors is needed” as a result of the “exigencies of [the COVID-19] crisis and the need for rigorous enforcement of workplace standards across the country.”