What to Expect During the Biden Administration


President-elect Biden has released the outline of his plan for curbing the spread of COVID-19. The outline makes no specific mention of tackling workplace infections, although it does mention providing funding to small businesses to obtain PPE for workers. At a time when it is evident that workplaces are a source of infection, especially for people of color, it is critical that President-elect Biden's COVID-19 task force include a focus on preventing workplace infections.


Under the Trump administration, Occupational Safety and Health Administration (OSHA), failed to act to protect workers from the risks of infection with COVID-19, creating workplace outbreaks. OSHA refused to produce legally binding rules, known as emergency temporary standards, that would require employers to take even the most basic step of requiring masks in the workplace to protect workers from the risks of infection on the job. While Trump being an anti-government President probably realizes he should have used OSHA during the Pandamic. During his first term in office he never appointed an assistant secretary of OSHA during the entire Trump Administration.


While Federal OSHA did produce non-binding guidance for employers, that guidance has been unclear and is fundamentally deficient in failing to require masks in all workplaces and failing to require recordkeeping that would identify potential outbreaks in workplaces in their early stages. In fact, OSHA's guidance has limited the number of infections that employers have to report. OSHA also failed to use its enforcement authority in a way that would encourage employers to use risk-mitigation strategies in the workplace. Rather than undertaking increased inspections to send a signal that employers need to protect workers from COVID-19, OSHA has conducted fewer inspections since the onset of the pandemic than it has in previous years.


Four “state-plan” states have issued COVID-19 emergency temporary standards that apply to worksites in the state

•Virginia

•Michigan

•Oregon

•California


Under Biden Federal OSHA should promulgate an Emergency Temporary Standard to require masks provided by the employer in all workplaces. This emergency temporary standard should also require employers to report all worker infections in order to prevent workplace outbreaks. In addition, existing guidance documents must be revised to clarify other steps that employers should take to reduce the risks of infection in the workplace, such as updating ventilation systems and actively encouraging employees who are infected or quarantined not to come to work. Creating an emergency temporary standard, and improving guidance documents, are two of the steps needed to significantly decrease workplace infections.


OSHA must identify the types of workplaces that present the highest risk of outbreaks, such as retail stores and factories, where workers are in proximity to customers or other workers. OSHA should prioritize proactive investigations of those workplaces to prevent outbreaks. It must also undertake rapid investigations of workplaces where employees have complained that their employers are failing to act to protect them from workplace exposure. These investigations must be rigorous, complaints. Through the end of October 2020, OSHA had received more than 11,000 workplace complaints related to COVID-19 hazards and had closed more than 10,000 of them. The number of total worksite inspections sharply decreased in 2020: Less than 22,000 inspections (35% decrease from 2019).


President-elect Biden needs to ensure that OSHA take decisive action to reduce infection rates in the workplace and unleash OSHA.OSHA has been criticized for not creating a temporary emergency standard (ETS) related to COVID-19. Labor organization sued OSHA to force it to create an ETS related to COVID-19. The Court of Appeals for the District of Columbia rejected the request. Rather than issue an ETS regarding COVID-19, OSHA has issued a series of Frequently Asks Questions related to COVID-19 to assist employers. FAQs address topics like: cleaning and disinfection, masks, PPE, respirators, recordkeeping, testing for COVID-19.


In the last 3 months, OSHA has started to issue more COVID-19-related citations. As of December 4, 2020, 255 COVID-19-related inspections, totaling $3.4 million in fines.


Maybe if Donald Trump unleashed OSHA earlier before the election he might have saved his presidency? Now Joe Biden has a chance to not only be the oldest person to occupy this office, but learn from Trump?