The rest of 2021 is showcasing some significant changes for business leaders and their companies. The most recent action by President Biden was the nomination of Doug Parker of San Francisco to head the Occupational Safety and Health Administration (OSHA) as the Assistant Secretary. Parker is currently the chief of California’s Division of Occupational Safety and Health (Cal/OHSA), a position he has held since 2019. He served in the Obama Administration as Deputy Assistant Secretary for Policy in the Mine Safety and Health Administration (MSHA), was a member of the Biden-Harris transition team focused on worker health and safety issues, and was executive director of Worksafe, a legal services provider. Parker’s nomination for assistant secretary requires Senate confirmation; however, no confirmation hearing is scheduled yet. Should Parker’s nomination become official, his policies will undoubtedly impact OSHA regulation as we will discuss in this article.
COVID-19 Emergency Temporary Standard
In his tenure at Cal/OSHA, a hastily-issued COVID-19 emergency temporary standard (ETS) was aggressively enforced, using COVID-19 to engage employers in surveillance testing, which resulted in confusion on outbreaks, exposed workplaces, and notification obligations. While Parker may not have had an official role in issuing the ETS, the prediction is that one of Parker’s first focus areas will likely mesh with the Biden administration’s push for a federal ETS since the COVID-19 pandemic is still ongoing; therefore, employers should familiarize themselves with Cal/OSHA’s ETS requirements.
Shift to Organized Labor Unions
Biden kicked off his campaign by vowing to be “the most pro-union president” and stated, “I’m going to be the strongest labor president you have ever had.” That campaign pledge has taken root. The Labor Department transition team has more than two dozen union officials and labor activists, and with the recently confirmed Secretary of Labor Marty Walsh in office, you may see the pendulum swinging back towards the worker-centered policy we saw during the Obama administration. According to the latest Gallup Pole¹, workers are responding positively to increasing unionization with a 65% approval rate.
Beef Up OSHA Enforcement
Parker will also be tasked with overseeing and revitalizing enforcement efforts and will resurrect many Obama-era rules that were set aside and not heavily enforced during the Trump administration. The Biden administration intends to double the number of OSHA compliance officers as a means of ensuring enforcement. As you investigate how that may play out in your state, the area offices will be able to knock on more doors. The timespan for compliance officers to be trained and begin conducting inspections is around 18 months. Now is the time dust off and reinvigorate your internal or third-party audit process. While the identification and elimination of workplace safety hazards is paramount, another focus is on compliance gaps as companies may have come up short in policy and procedure execution in 2020.
National Emphasis Program
OSHA’s National Emphasis Programs (NEPs) are temporary programs that focus OSHA’s resources on particular hazards and high-hazard industries. The NEP includes a planned/programmed and follow-up inspection initiative that aims to increase workplace safety in primary and secondary target industries where employees have a high frequency of close contact exposures, such as manufacturing (wood product, paper, chemical, food and beverage, metal, plastics, and rubber product), warehousing and storage, healthcare, meat and poultry processing, construction, grocery, and restaurants; refer to NEPs lists of targeted industries. Please be aware that industries not included on the lists may be targeted for inspection as unplanned inspections if OSHA believes it is warranted based on COVID-19 fatality events or by allegations of potential or confirmed employee exposure to COVID-19.
Expect federal OSHA to work side-by-side with State Plans to seek more vigorous enforcement. This could result in a demand to increase the State Plan’s penalties, a resurrection of the original electronic reporting rule adopted in 2017 (which will require certain employers to electronically post their OSHA 300 log data), and an enforcement of the 2016 OSHA Anti-Retaliation Rule pertaining to injury and illness reporting rules, safety incentive programs, and drug testing policies.
How You Can Plan and Prepare
As the new OSHA front office takes shape and as personnel start reporting back from remote work, plan accordingly by analyzing risk, identifying and controlling hazards, and auditing the status of your company’s health and safety compliance and the implementation of policies and procedures.
For more information on how you can properly prepare for these expected changes, contact Monica Meyer.