What should you expect from the Occupational Safety and Health Administration (OSHA) under the incoming president, Joseph R. Biden Jr.? Will it be a “2.0” version of the agency as it existed under President Barack Obama? How much will the events of the past 4 years alter its priorities?
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OSHA regulations in various stages of development at the end of the Obama administration included standards for infectious diseases, tree care, and workplace violence in healthcare facilities and social assistance. The agency also had developed a robust practice of issuing press releases about enforcement actions intended to shame employers into stricter compliance with OSHA standards.
New concerns have emerged over the past 4 years. Members of Congress became increasingly concerned about the effects of heat illness, which can be debilitating or even fatal. Once Democrats regained their majority in the House of Representatives, they introduced legislation that would have compelled OSHA to develop a heat stress standard.
The most pressing current occupational safety and health hazard is workplace exposure to the SARS-C0V-2 virus and coronavirus disease 2019 (COVID-19) infections. Members of Congress and labor unions have petitioned Secretary of Labor Eugene Scalia for an emergency COVID-19 standard without success.
Emergency COVID-19 Regulation
COVID-19 infections continue to surge due to community and workplace exposures. Three states—Michigan, Oregon, and Virginia—have established emergency COVID-19 regulations, administered by their state occupational safety and health agencies.
Even if one or more vaccines receive emergency use authorization from the Food and Drug Administration before the end of the year, immunization may proceed slowly at first.
The COVID-19 pandemic will likely still be with us after Biden is sworn in on January 20, 2021. An emergency OSHA regulation for COVID-19 could be part of the public health response to the pandemic, although the list of Biden-Harris COVID-19 priorities makes no mention of an OSHA standard.
What would a federal emergency standard for COVID-19 look like? The Michigan, Oregon, and Virginia emergency rules may offer some insight into the provisions a federal standard might include.
Virginia became the first state to adopt an emergency temporary standard (ETS) for COVID-19. Virginia’s ETS applies to every employer in the state and contains provisions for exposure assessments and risk determinations, notification requirements, and employee access to exposure and medical records.
Employers in Virginia must ensure employees observe physical distancing protocols, and frequently touched surfaces must be cleaned and disinfected at least once at the end of each shift. Common areas like break rooms and lunchrooms must be closed or their access tightly controlled.
Michigan’s emergency COVID-19 rule may be one of the strictest, containing both a requirement for remote work, when feasible, and a requirement for employers to pay for employee face coverings. The Michigan Occupational Safety and Health Administration (MIOSHA) issued its emergency regulations on October 14.
MIOSHA’s emergency rule, which applies to all employers in the state, includes requirements for preparedness and response plans, infection prevention measures, health surveillance, workplace controls, personal protective equipment (PPE), recordkeeping, and training. Michigan also requires employers to provide non-medical-grade face coverings for employees at no cost and require face coverings when employees cannot maintain a 6-foot distance from others. Other states do not require employers to pay for employees’ face coverings.
On November 4, MIOSHA released an interim enforcement plan with instructions for on-site inspections conducted by industrial hygienists in the agency’s construction and general industry divisions. In addition to enforcement of the emergency COVID-19 rules, MIOSHA expects that it may cite employers for violations of the state’s PPE, respiratory protection, sanitation, and recordkeeping and reporting regulations.
Oregon became the third state to establish an emergency COVID-19 rule, following Virginia and Michigan. Oregon’s rule requires cloth face coverings in indoor spaces, regardless of physical distancing.
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Oregon’s emergency rule requires employers to perform exposure risk assessments and develop, implement, and maintain an infection prevention plan. Employers in Oregon also must ensure that all tasks and workflows are designed to maintain a distance of 6 feet or more between individuals; maintain face coverings and physical distancing at outdoor worksites and premises; post an agency-provided “COVID-19 Hazards Poster”; and maximize the amount of outside air circulated through the existing workplace heating, ventilation, and air conditioning (HVAC) system.
Oregon also began work on a permanent infectious disease regulation as it finalized the emergency COVID-19 regulation. Any federal emergency COVID-19 standard also could lay the groundwork for a permanent infectious disease standard. While OSHA has a bloodborne pathogens standard, there is no federal standard for aerosol or airborne infectious diseases. California has an airborne transmissible disease (ATD) standard that is limited in scope to correctional and healthcare facilities, laboratories, and certain public services.
Infectious Disease Standard
California’s ATD standard requires that employers protect workers from airborne diseases like COVID-19 and tuberculosis (TB), influenza, and pertussis (whooping cough). There currently is no corresponding federal workplace health standard. Infection control measures are specified by the Centers for Disease Control and Prevention (CDC) and industry standards set by the Joint Commission, which issues accreditation for hospitals and other healthcare organizations. Joint Commission accreditation is needed for organizations to receive reimbursement from the Center for Medicare and Medicaid Services and private insurance companies.
However, the Obama administration OSHA was developing a standard for comprehensive infection control programs and control measures to protect employees from infectious disease exposures. Measures being considered at the time included requirements for written worker infection control plans, medical surveillance and vaccination, and a medical removal protection (MRP) benefit paid to employees removed from duty due to infection. The Trump administration removed the rulemaking from the Department of Labor’s regulatory agenda.
The COVID-19 pandemic and a subsequent shortage of respirators have renewed interest in an infectious disease workplace standard.
Heat Stress Standard
Given that 2020 saw the hottest summer on record in the Northern Hemisphere, according to the National Oceanic and Atmospheric Administration, a Biden administration OSHA may receive renewed calls for a federal heat stress standard. OSHA currently cites employers for heat hazards under the General Duty Clause of the Occupational Safety and Health Act of 1970 (OSH Act).
The Occupational Safety and Health Review Commission last year vacated an OSHA citation in a fatal heat stress incident, saying the agency uses the General Duty Clause as a “gotcha” or “catchall” for hazards, with no established standards. OSHA’s failure to set a heat stress standard leaves employers confused about their responsibilities, the commissioners wrote in their decision.
Representative Judy Chu (D-CA) last year introduced a bill (H.R. 3668) in the House that would have compelled OSHA to establish an occupational safety or health standard on prevention of exposure to excessive heat. The standard authorized by the bill would have required employers to provide hydration, scheduled and paid rest breaks in shaded or climate-controlled environments, an acclimatization plan, training, monitoring, surveillance, and recordkeeping, as well as emergency response in cases of heat illnesses.
Several states, including California, have heat stress or heat illness standards, and Chu’s bill would have required a federal standard at least as stringent as existing state standards. Minnesota has a standard covering exposure to both hot and cold environments. The National Institute for Occupational Safety and Health (NIOSH) first issued a criteria document for a heat and hot environments standard in 1972, revising it in 1986 and again in 2016. A criteria document often acts as a template for an OSHA standard.
NIOSH has suggested the inclusion of requirements for worker information and training; control measures, including acclimatization, hydration, and monitoring; medical surveillance; and recordkeeping in a heat stress standard.
Workplace Violence in Health Care
A rulemaking for the prevention of workplace violence in health care and social assistance remains in the prerule stage at OSHA. On January 10, 2017, the Obama administration OSHA granted petitions for a rulemaking from the National Nurses United and other labor unions. The agency had issued a request for information about a possible standard on December 7, 2016.
The agency asked for comments on the scope and types of controls a standard might include. OSHA had concluded that workers in health care and social assistance face an increased risk of injury due to workplace violence based on data compiled by the Bureau of Labor Statistics (BLS) for its Survey of Occupational Injuries and Illnesses (SOII).
BLS data showed at the time that workers in the sector experienced workplace violence-related injuries at an estimated rate over four times higher than the rate for workers in the private sector overall.
OSHA suggested a standard for workplace violence prevention might include requirements for management commitment and employee participation, engineering and administrative controls, PPE, training, and recordkeeping and program evaluation. The agency had specific questions about management commitment and employee participation, worksite analysis and hazard identification, hazard prevention and control, training, and program evaluation.
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Emergency Preparedness and Response
Another rulemaking still in the prerule stage is one for emergency preparedness and response. OSHA has many existing standards regulating various aspects of emergency preparedness and response. The Obama administration moved to address concerns in the emergency response community, following the April 17, 2013, ammonium nitrate explosion at a fertilizer plant in West, Texas, which resulted in 15 fatalities and more than 260 injured, according to the U.S. Chemical Safety and Hazard Investigation Board.
OSHA acknowledged that its existing standards failed to reflect major developments in safety and health practices that already had been accepted by the emergency response community and incorporated into industry consensus standards.
Other Potential Developments
The Obama administration had been developing a tree care industry standard. While the industry is small, tree care remains a high-hazard industry. The tree care industry previously had petitioned the agency for rulemaking, and OSHA issued an advance notice of proposed rulemaking in September but later removed it from the Regulatory Agenda. The agency this year initiated and completed a Small Business Regulatory Enforcement Fairness Act (SBREFA) review of the rulemaking.
A Biden administration OSHA also could resume the practice of “regulation by shaming,” issuing press releases about violations cited and fines issued in enforcement actions. A Duke University researcher found that the policy under former OSHA Administrator David Michaels led to other facilities significantly improving their compliance. The Trump administration has curtailed the practice, according to a departmental memorandum obtained by The New York Times.
A Biden administration OSHA likely would feature well-publicized enforcement.