Biden Will Ask OSHA to Reconsider Emergency COVID-19 Standards

OSHA has issued guidelines, not standards, to protect workers from coronavirus infection, and the incoming administration plans to stiffen enforcement as well as requirements

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On the December 29 50th Anniversary of the Occupational Safety and Health Act, President-Elect Joe Biden said he would ask OSHA to reconsider issuing emergency workplace standards to protect workers from contracting COVID-19.

Unions, worker advocates and Democrats unsuccessfully pushed the Trump Administration’s OSHA to issue standards. It left employers able to pick and choose precautions from optional guidelines.

According to a statement from the Biden-Harris Transition team:

“In the midst of a global pandemic, OSHA has been prevented from using its full range of tools to protect workers from COVID-19. The number of OSHA inspectors is at its lowest level since 1975, while millions of essential workers are working to keep the country functioning through the pandemic.

“My administration will ask OSHA to determine whether to establish an emergency temporary standard to keep workers safe from COVID-19. I will direct OSHA to enforce worker safety requirements, target the worst violators, and work to increase the number of OSHA inspectors to get the job done.”

OSHA is authorized to set emergency temporary standards that take effect immediately and are in effect until superseded by a permanent standard. OSHA must determine that workers are in grave danger due to exposure to agents determined to be toxic or physically harmful. Then, OSHA publishes the emergency temporary standard in the Federal Register, where it also serves as a proposed permanent standard. It is subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months.

During the presidential campaign, Biden called on President Trump to “double the number of OSHA investigators to enforce the law and existing standards and guidelines,” specifically those concerning COVID-19.

A legal alert from the employment-law group Fisher Phillips suggests, “Given this aggressive approach to workplace safety enforcement, Biden likely will increase the number of investigators in OSHA and the Mine Safety Health and Administration.”