OSHA Re-evaluating COVID-19 Workplace Guidance

Originally published by: The National Law ReviewJanuary 26, 2021

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On January 21, 2021, President Biden signed an executive order aimed at increasing COVID-19 workplace safety measures at the federal level.  As a result, employers should expect new OSHA guidance within the next two weeks and new emergency temporary standards by mid-March.

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Under the January 21, 2021 Executive Order, President Biden directed the Secretary of Labor to take several steps:

  • Within 2 weeks of the Executive Order, issue revised guidance to employers on workplace safety during the COVID-19 pandemic;

  • Consider whether emergency temporary standards on COVID-19, including whether requiring mask-wearing in the workplace, are necessary and if so, issue those standards by March 15, 2021;

  • Review OSHA’s enforcement efforts related to COVID-19 and identify any changes that could be made to better protect workers and ensure equity in enforcement;

  • 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 violate anti-retaliation principles; and

  • Coordinate with the DOL’s Office of Public Affairs and Office of Public Engagement to provide a multilingual outreach campaign regarding workers’ rights.

Key Takeaways

President Biden’s Executive Order on Protecting Worker Health and Safety states that it is his Administration’s policy to protect the health and safety of workers from COVID-19 and that the federal government must take swift action to issue science-based guidance to help keep workers safe.  This suggests OSHA may take a more proactive approach regarding mandating steps employers must take regarding COVID-19 safety in the workplace.  The directive specifically identified mask wearing in the workplace as a regulation or temporary emergency standard to examine.

As we previously reported, under the Trump Administration, OSHA had only issued non-binding guidance, as opposed to emergency temporary standards or regulations, regarding workplace safety requirements amid the risks of the COVID-19 pandemic.  OSHA instead relied on existing regulations and the General Duty Clause, Section 5(a)(1) of the OSH Act, that requires employers to “provide a safe and healthful workplace that is free from serious recognized hazards.”  As of January 8, 2021, OSHA had issued citations arising from 300 inspections for violations relating to the coronavirus, resulting in proposed penalties totaling $3,930,381.  These citations were primarily centered in the health care, nursing home, and meat packing industries but more recent citations were expanding beyond those industries.

This new executive order confirms that OSHA will be taking a more active approach regarding adopting COVID-19 workplace rules.