Biden Directs OSHA Towards New COVID-19 Standards

On his first full day in the Oval Office, U.S. President Joe Biden on Jan. 21, 2021 signed a number of executive orders, among them, the Executive Order on Protecting Worker Health and Safety.

The order states that “Ensuring the health and safety of workers is a national priority and a moral imperative. Healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic. It is the policy of my Administration to protect the health and safety of workers from COVID-19.”

The National Safety Council (NSC) issued a statement saying it applauded President Biden for the executive order directing OSHA to determine whether an Emergency Temporary Standard (ETS) is necessary to protect workers from exposure to COVID-19.

“In the last 10 months, employers have operated without a national guideline that provides a uniform level of care for workers,” said the NSC in a statement. “The absence of an ETS has been a glaring gap in our nation’s pandemic response. Employers and their workforces are grappling with the worst workplace safety crisis in a century, and our government can use its authority to assist. We urge it to do so – a move we called for last June.”

The Council noted that a “patchwork system” of requirements is now being experienced in the United States as individual states started issuing temporary standards on their own. According to NSC, “One national standard will establish one level of safety for all workers at this time when we need it most.”

The executive order directs the Secretary of Labor, acting through the Assistant Secretary of Labor for Occupational Safety and Health, to issue, within two weeks of the date of the order and in conjunction or consultation with the heads of any other appropriate executive departments and agencies, a revised guidance to employers on workplace safety during the COVID-19 pandemic. The Secretary of Labor is directed to consider whether any emergency temporary standards on COVID-19, including a requirement for masks in the workplace, are necessary. If such temporary standards are determined to be necessary, the U.S. Department of Labor (DOL) must issue them by March 15, 2021. The DOL also has been tasked with:

• Reviewing the enforcement efforts of the Occupational Safety and Health Administration (OSHA) related to COVID-19 and identify any short-, medium- Launching a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles; and
• Coordinating with the DOL’s Office of Public Affairs and Office of Public Engagement and all regional OSHA offices to conduct, consistent with applicable law, a multilingual outreach campaign to inform workers and their representatives of their rights under applicable law. This campaign shall include engagement with labor unions, community organizations and industries, and place a special emphasis on communities hit hardest by the pandemic.
• Coordinating with states that have occupational safety and health plans approved under section 18 of the Occupational Safety and Health (OSH) Act to ensure that workers covered by such plans are adequately protected from COVID-19, consistent with any revised guidance or emergency temporary standards issued by OSHA. In states that do not have such plans, the DOL must consult with state and local government entities with responsibility for public employee safety and health and with public employee unions to bolster protection from COVID-19 for public sector workers.

The Secretary of Labor, acting through the Assistant Secretary of Labor for Mine Safety and Health, has been tasked with considering whether any emergency temporary standards on COVID-19 applicable to coal and metal or non-metal mines are necessary. If such standards are determined to be necessary and consistent with applicable law, then the department should issue them as soon as practicable.

The Secretary of Agriculture, the Secretary of Labor, the Secretary of Health and Human Services, the Secretary of Transportation and the Secretary of Energy, in consultation with the heads of any other appropriate agencies, should explore mechanisms to protect workers not protected under the OSH Act “so that they remain healthy and safe on the job during the COVID-19 pandemic.”

The NSC noted that up to this point, employers have relied on guidance provided by Centers for Disease Control and Prevention, the National Institute for Occupational Safety and Health, OSHA and individual states. “More than 400,000 people have died from COVID-19. We are past the point of guidance… Saving lives requires bold action. Now is not the time for minimum action. An ETS would help us meet the moment. NSC is committed to working with the new administration on all efforts to save lives, from the workplace to anyplace,” said the statement from NSC.

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