Federal OSHA – Robust Enforcement and Regulatory Actions are on the Horizon
Posted: May 11th, 2021Authors: Kevin C.
On April 9, 2021 President Biden announced his intention to nominate Doug Parker as the Assistant Secretary of Labor for Workplace Safety and Health, which is a leadership role of the Occupational Safety and Health Administration (OSHA). The position has not been filled since January of 2017 and his appointment will eventually have to be confirmed by the U.S. Senate. Doug Parker has been the Chief of California’s Department of Industrial Relations Division of Occupational Safety and Health (Cal/OSHA) since 2019. A former U.S. President Obama appointee, he previously served as Deputy Assistant Secretary for Policy in the Department of Labor’s Mine Safety and Health Administration (MSHA). In his role at Cal/OSHA he is known for prioritizing workplace safety through aggressive enforcement tactics. This was demonstrated during his tenure at Cal/OSHA by his implementation of a broad COVID-19 enforcement initiative that most agree has outpaced the Federal Government and other States with regard to setting strict pandemic-related safety rules.
An overall aggressive enforcement policy is expected from OSHA during this administration. President Biden indicated prior to his election that his administration intended to “double the number of OSHA investigators to enforce the law and existing standards.” It would likely take a year or more to get that many new inspectors trained and placed in the field conducting inspections. However, in the recent COVID relief bill approved by the U.S. Congress approximately $110 million was allocated for Federal OSHA, of which State OSHA Programs will likely get anywhere from $15-20 million (there are 28 states currently under Federal jurisdiction and 22 states have federally-approved OSHA programs). That allocation leaves a lot of money available for OSHA to hire additional Federal inspectors and establish a much more aggressive enforcement initiative over the next few years. This change won’t necessarily be a function of new regulatory standards, instead a much more aggressive enforcement of current standards. It typically takes a new regulation 6-8 years, and sometimes more, to go through the rule development process, be proposed, be promulgated, and become effective. Previous Cal/OSHA initiatives such as Injury and Illness Prevention Plans and tougher standards for workplace exposure to chemical contaminants could also be on the horizon for the Federal program.
Workplaces will be under increased scrutiny regarding increased inspections and more responsiveness from OSHA to complaints and referrals received by Federal or State OSHA offices. This will likely be through National Emphasis Programs, Targeted Inspection Programs, Enforcement Memos and Compliance Directives. Specific industries may be targeted for inspections or impacted by compliance directives likely to be issued over the next few years.
Update on the Emergency Temporary Standard (ETS) for COVID-19
On April 26, 2021 the Department of Labor announced that OSHA announced it had sent a draft ETS regarding the COVID-19 pandemic to the Office of Management and Budget for review. President Biden issued an executive order in January 2021 calling on OSHA to issue an ETS by March 15, 2021. Although the Department of Labor indicated with the press release that “OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right,” there could be another reason for the delay: ETS’s are typically harder to defend if challenged in court because OSHA must determine that workers are in “grave danger” due to potential exposures or hazards and as such an emergency standard is needed to protect them. With the delay in the process and with vaccinations increasing and COVID-19 case levels dropping in areas within the U.S., it may be more difficult to defend an ETS against the legal challenges and political opposition expected for the temporary standard. ETS’s also take effect immediately and are in effect until superseded by a permanent standard. Permanent standards are much more likely to withstand future legal challenges. With new OSHA leadership in place this very well could be the beginning of a push for a more permanent Infectious Disease Standard as had been previously proposed under the Obama administration.
Awareness and preparedness are the keys to a successful workplace health and safety program inspection. This is a good time to start planning an assessment of your workplace health and safety policies with an added focus on OSHA compliance issues specific to your facility. For more information on how ALL4 can assist you with OSHA compliance, please reach out to Kevin Chaplin at 502-254-0670.