What to Expect from OSHA in a Biden Administration

By Seyfarth Shaw LLP on November 20, 2020

Posted in OSHA Compliance, OSHA Enforcement, OSHA Litigation, Public Outbreaks

By Brent I. Clark, Mark A. Lies, II, Benjamin D. Briggs, James L. Curtis, A. Scott Hecker, Patrick D. Joyce, and Adam R. Young

Seyfarth Synopsis: As the prospects of a likely Biden administration develop a key question becomes what should employers expect from OSHA under Biden? A COVID-19 Emergency Temporary Standard, aggressive enforcement, and a shift in priorities.

We predict OSHA’s priorities in a Biden administration based on campaign talking points, the Democratic House’s actions in the past two years, and experience from the Obama administration.

COVID-19 Emergency Temporary Standard

Employers can expect OSHA under Biden to direct resources to issuing a COVID-19 Emergency Temporary Standard (ETS). Most OSHA jurisdictions do not have a specific COVID-19 standard. However, some states have promulgated COVID-19 specific standards. State-plan OSHA agencies in Virginia, Oregon, and Michigan have each adopted COVID-19 standards that are likely to provide a good indication of what requirements a federal OSHA ETS might include:

  • developing and implementing a preparedness and response plan;
  • social distancing;
  • screening;
  • practicing proper hygiene and other infection control measures;
  • assessing exposure risks;
  • masking;
  • notifying public health departments about positive employee tests;
  • recordkeeping; and
  • training.

States that have implemented a COVID-19 ETS have mandated that employers provide training, signage, and other types of employee communications in languages common to employee populations, and OSHA could follow suit. Biden appointed a COVID advisory commission on November 9, and a Biden administration OSHA will likely hit the ground running on January 20, 2021 working toward an ETS.

Aggressive Use of Citations and Enforcement

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