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Yesterday, on his first full day in office, President Biden signed an additional ten Executive Orders, among them one directing the Occupational Safety and Health Administration (OSHA) to take immediate action and issue guidance to employers on protecting workers from COVID-19.
Specifically identifying “healthcare workers and other essential workers, many of whom are people of color and immigrants, [who] have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic,” the President’s Executive Order requires that OSHA take the following “swift” actions, among others, to reduce the risk that workers may contract COVID-19 in the workplace:
- Release guidance within two weeks of the date of his Order directing employers on workplace safety
- Evaluate and consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021
- Launch 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
Emergency COVID-related standards, even if temporary, will likely result in litigation, particularly if the new standards track the one enacted in California, which requires employer-funded testing during work hours, mandates paid leave, and subjects employers to OSHA’s Respiratory Protection standard.
Given the President’s campaign promise to be “the most pro-union president you have ever seen,” employers can also expect other non-COVID-related changes in OSHA guidance from this Administration, including a marked increase in enforcement and inspection activity across the board and the appointment of a safety professional with close ties to organized labor as the Assistant Secretary of Labor to OSHA, having already appointed Jim Frederick (a former United Steelworkers safety official) as Deputy Assistant Secretary on Inauguration Day.