As of the writing of this article (March 15, 2021), President Biden has been inaugurated, he has nominated Marty Walsh as the U.S. Secretary of Labor, installed Jim Frederick as Deputy Assistant Secretary of the Occupational Safety and Health Administration (OSHA) and the U.S. Senate is split 50-50 with ties going to the Democrats through Vice President Kamala Harris. In this article, we attempt to explain what this means for the top legislative, regulatory, and enforcement issues involving OSHA. Construction employers want to know what this means for their industry, projects, workers, and their own safety and health programs.
On January 8, 2021, then President-elect Biden announced he would nominate Boston Mayor Marty Walsh to be U.S. Secretary of Labor. Walsh was a union president and state representative before becoming mayor. On February 11, 2021, the U.S. Senate Committee on Health, Education, Labor and Pensions voted to advance the nomination of Walsh to be U.S. Secretary of Labor. The next stop for Walsh’s nomination is a vote on the Senate floor.
Next, only minutes after his inauguration, President Biden installed Jim Frederick as Deputy Assistant Secretary of Labor for OSHA. Frederick retired last year after 24 years as assistant health and safety director at the United Steelworkers union. Both Fredrick and Walsh will bring a pro-labor union perspective on legislation and regulation. While Frederick is the acting OSHA head, we do not yet know who will lead OSHA: the official title is the Assistant Secretary of Labor for OSHA. Leadership matters, and construction employers should be keenly interested in who takes the reigns of the federal government’s workplace safety and health agency.
There is a saying in Washington, D.C., that “personnel is policy.” Whomever President Biden nominates to run the labor and employment related agencies, including OSHA, will have an enormous influence on federal labor and employment policy. Expect the DOL of the Biden Administration to be aggressive from the start, in terms of both regulatory actions and enforcement proceedings. Clawing back some initiatives of the DOL of the Trump Administration will be a priority. But beyond that, expect this DOL to go on the offensive with an agenda even more progressive than that of the Obama Administration’s DOL.
The ongoing COVID-19 pandemic has thrust OSHA into the spotlight, and workplace safety will likely be the priority of the Biden DOL. Assuming Walsh is confirmed, his top priority will likely be the development of an emergency temporary standard to protect workplaces from COVID-19 (though, as discussed below, such a standard may issue even before he is confirmed). Enforcement is likely to tick up, too, especially regarding COVID-19–related complaints. Finally, while it was not abandoned entirely by OSHA under the Trump Administration, a Biden OSHA will likely return to a much more aggressive “regulation by shaming” campaign through using conclusory press releases.
An Emergency Temporary Standard for COVID-19
Under the Trump Administration, OSHA used its general duty clause to enforce its COVID-19 guidance, rather than adopt an emergency temporary standard (ETS). On January 21, 2021, President Biden issued an executive order requiring the federal government to take “swift action” to protect workplaces from the COVID-19 pandemic. He ordered OSHA to, among other things, consider whether an ETS standard is necessary and, if so, to implement such a standard by no later than March 15, 2021.
On February 25, 2021, DOL’s Office of the Inspector General (OIG) issued a highly critical report of OSHA’s handling of the COVID-19 pandemic. The report concluded, “[d]ue to the increase in complaints, reduction in inspections, and most inspections not being conducted onsite, there is an increased risk that OSHA has not been providing the level of protection that workers need at various job sites.” Accordingly, the report recommended, “OSHA should consider whether COVID-19 should be classified as a ‘grave danger’ and reconsider whether an [ETS] would be necessary to protect employees from such danger.” The report likely provides ammunition for proponents of an ETS, who are hoping to see OSHA issue such a standard on March 15, 2021.
On March 11, 2021, President Biden signed into law the American Rescue Plan Act of 2021—a $1.9 trillion economic relief package. The legislation appropriates $200 million for DOL agencies, including OSHA, “to carry out COVID-19 related worker protection activities.” More specifically, “[n]ot less than” $100 million is reserved for OSHA, and at least $5 million of that amount is for “enforcement activities related to COVID-19 at high risk workplaces including health care, meat and poultry processing facilities, agricultural workplaces and correctional facilities.”
In what is likely the final predicate for issuing an ETS, on March 12, 2021, OSHA issued a new National Emphasis Program (NEP) for COVID-19 “targeting specific high-hazard industries or activities” (not including construction; whew!) and an Updated Interim Enforcement Response Plan for COVID-19 (ERP). The ERP “provides new instructions and guidance to Area Offices and Compliance Safety and Health Officers (CSHOs) for handling COVID-19 related complaints, referrals, and severe illness reports.” The NEP indicates, “[i]n the event that OSHA issues an [ETS], those provisions will take precedence over citations of the general duty clause.” This likely foretells what most of us have deemed to be the obvious: that OSHA will issue an ETS—just not by March 15, 2021, as President Biden initially directed.
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 DOL does use California’s ETS as a model, construction 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.
Construction employers should be on the lookout for a mask requirement in any such ETS. Another feature in such an ETS might be a vaccination requirement, but this is less likely. Any ETS would only remain in effect for six months; during that time, OSHA could try to promulgate a final or permanent standard but OSHA has had difficulty adopting such standards in the past.
Shaming Employers into Compliance
During the Obama Administration, OSHA greatly increased the frequency and intensity of a tactic the agency had used for many years: castigating in press releases employers to whom it had issued citations. The press release would recite with embellishment the citation’s allegations, putting the employer through a paper perp walk. It would disparage the employer, often using harsh words not found in the citation and featuring derogatory quotations from OSHA officials. One press release accused a company of having “created a culture that values production and proﬁt over workers safety.” Another, after announcing the issuance of citations for non-willful, non-serious paperwork violations, accused the employer of “blatant disregard” of regulations; years later, a court dismissed all the charges.
Though OSHA has long engaged in this practice, the Obama administration supercharged it, even giving it a name: “regulation by shaming.” The Trump Administration cut back on the harshness and frequency of punitive press releases. Now that the Democrats have captured the White House and Senate, the old policy will likely come roaring back; union officials and others, are already urging just that.
Probably No Sweeping Legislative Changes
Democrats have held the U.S. House of Representatives, but they will be working with the slimmest House majority in years. Democratic victories in the two U.S. Senate runoff elections in Georgia on January 5, 2021 means that the 117th United States Congress will get underway with the U.S. Senate evenly split: 48 Democrats (and the 2 independent senators who caucus with them) and 50 Republicans. Once inaugurated, Vice President-elect Kamala Harris will give Democrats a tiebreaking 51st vote in the Senate. The Senate legislative filibuster means that 60 votes are effectively needed to pass legislation in the Senate.
Leading up to the election, there was much speculation regarding whether the Democrats would abandon the legislative filibuster if they took control of the Senate. Such a move would allow senators to pass legislation with a simple majority vote (51 votes), rather than the 60-vote threshold currently required. Eliminating the filibuster would be a monumental and historic change to the way bills are drafted and passed in Congress. In this scenario, a Senate without the filibuster would enable Democrats to pass legislation dealing with the COVID-19 crisis, and more.
The elections and political aftermath, however, have created a situation in which the filibuster will more than likely survive. The Democrats have 50 senators in 2021. A tiebreaking vote by a Vice President-elect Kamala Harris would, therefore, appear to give the Democrats the votes to scrap the filibuster, but multiple Democratic senators have indicated they will not vote to eliminate the filibuster. Thus, with the filibuster likely remaining intact, Republicans can better thwart the Democrats’ legislative efforts, even though Democrats won both Senate races in Georgia.
While the filibuster may put a damper on a robust Democratic legislative reform agenda, the Biden presidency will still bring a dramatic shift to the federal labor and employment policy landscape. The 180-degree turn in regulatory employment policy priorities that will likely result will undoubtedly create uncertainty for employers, which are already dealing with a pandemic and an unstable economy.
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.
The most important focus point for construction industry employers really should be who will lead OSHA under the Biden Administration. 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, construction employers should continue to watch these appointments closely and analyze their safety program anew to make sure they are in compliance.