What will OSHA look like under the Biden administration?

COVID-19 remains very much the focus of OSHA but things have 'changed dramatically' under new president, says practice group

What will OSHA look like under the Biden administration?
The firm noted huge differences between the Trump and Biden administrations.

A recent webinar hosted by law firm Conn Maciel Carey LLP’s National OSHA Practice Group shed light on OSHA developments in 2020 as well as a trend forecast for the remainder of 2021.

2020 has already been a big year for OSHA, with the new Biden administration markedly different from the previous Trump administration.

“Things have changed pretty dramatically at OSHA under a Biden administration,” said Eric Conn, Chair of the firm’s National OSHA Practice.

Under Trump, for the first time in OSHA’s history, the Administration did not have a permanent, Senate-approved Assistant Secretary for an entire presidential term.

Under the Biden administration, filling political leadership positions at OSHA became a priority and Biden very quickly installed Deputy Assistant Secretary Jim Frederick (a non-Senate approval position) and nominated an Assistant Secretary for OSHA (Doug Parker).

The Biden administration has also looked to obtain substantial funds to increase OSHA enforcement personnel.

Biden makes OSHA a priority

On Biden’s first full day in office, he also issued the “Executive Order on Protecting Worker Health and Safety,” pushing for OSHA to enhance its COVID-19 strategy – which includes enhancing OSHA enforcement.

“This was the first time ever that any president on his first day in office issued an executive order about OSHA,” said Conn.

Conn highlighting that these moves seem to highlight that OSHA will be a priority for the Biden administration.

In March, the administration ordered OSHA to launch a COVID-19 National Emphasis Program to focus on employers putting workers at risk as well as look into retaliation against workers making complaints about COVID-19 hazards in the workplace.

OSHA has also issued a COVID-19 Emergency Standard – which has been controversial, notably among unions, due to the fact that it is currently only limited to the healthcare sector.

Changes outside of COVID-19

Though COVID has taken up much of OSHA’s attention, there are still other notable updates.

Every year the maximum amount for citations are going up.

For example, willful and repeat citations can now go up to $136, 532 (up from $134,947) and serious and other-than-serious citations can now go up to $13,653 (previously $13,494). Aaron Gelb, Head of the firm’s Mid-West Practice, highlights that OSHA typically fine the maximum amount.

OSHA’s Repeat Violations policies have evolved under the Biden administration (and also previously during the Obama administration) there was a move to a more proactive policy rather than reactive policy.

Gelb also discussed the difference in the number and tone of releases between the Bush/Trump and Biden/Obama administrations – noting a partisan split between how Democratic and Republican administrations handle reporting citations.

Future of OSHA

Speaking about potential avenues for OSHA updates, partner Amanda Strainis-Walker noted a number of potential avenues for 2021 and beyond including:

  • A stronger focus on diversity, equity and inclusion;

  • Reinvigorating OSHA as part of the Build Back Better plan and improving compliance with the OSH Act;

  • Enhancing support for frontline workers in essential industries (e.g. by making retaliation clauses and making employers aware of what rights they have under the OSH Act);

  • A stronger focus on infectious diseases;

  • Heat illness rules for federal OSHA (which is very much a topic of concern due to extreme heat conditions in the Western U.S.);

  • Developing more standards around workplace violence.