1.22.21

We have written about this before and made our predictions, but it seems appropriate to go into a bit more detail now that the Biden Administration is a reality.

There will be new policies, and also new people. We know a little bit about how both of these things happen, and how it works. We thought it might be helpful to share our experiences.

There are three big “buckets” of priorities under the Occupational Safety and Health Administration: The development of new standards, the enforcement of standards, and actions to encourage employers to voluntarily comply with standards. Every presidential administration ranks these priorities differently. Republicans typically stress voluntary compliance, enforcement, and standards development, in that order. Democratic administrations stress standards development, enforcement, and voluntary compliance, in that order.

We expect the same thing to happen now. The priority now will be an Emergency Temporary Standard on COVID-19, similar to the emergency standards issued by California, Michigan, and Virginia. OSHA can issue such a standard quickly. But an Emergency Temporary Standard lasts only six months, so at the same time OSHA must work on a permanent standard. One approach the agency might use is to dust off the standard it had been working before President Trump took office, which was designed to cover “airborne transmissible diseases” similar to California’s standard on the same topic. The California standard covers only health care workers, but a Federal Standard could expand that scope. Any new permanent Federal Standard will have to go through notice and comment rulemaking, which can be a lengthy process, so OSHA will need to start right away.

As a parallel effort, OSHA could begin to take advantage immediately of the Occupational Safety and Health Act’s General Duty Clause, which is a catch-all provision that allows OSHA to issue citations and fines for “recognized hazards” in the workplace. OSHA has not taken advantage of this provision during the Trump Administration. That is likely to change under President Biden, and can be done with just the issuance of a Directive to OSHA compliance staff telling them to start using it.

The Biden Administration has also moved quickly to put experienced people in place as advisers and at the top ranks of OSHA. The individuals mentioned in press reports have a great deal of experience with OSHA issues, and know the agency well. They will be able to hit the ground running.

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