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State of the Industry: What We Can Expect from A Biden Presidency

By Maureen Paraventi, Editor

With the new year comes a new presidential administration – one likely to make significant changes in the environmental health and safety landscape in the U.S. It is impossible to say with certainty what those changes will be, but based on past actions and statements by President-elect Joe Biden, we can make some predictions:

OSHA will issue a COVID-19 Emergency Temporary Standard (ETS). Biden has identified this as a top priority, noting that the ETS should give employers and employees specific, enforceable guidance on what to do to reduce the spread of the virus. Expect to see increased enforcement of COVID-19-related recordkeeping and reporting.

OSHA may issue a permanent infectious disease standard. In a prescient move, the American Federation of State, County & Municipal Employees (AFSCME) in 2005 petitioned OSHA for a rule addressing pandemic influenza. AFSCME followed this up in 2009 with a request for a rule addressing occupational exposure to infectious diseases. In response to those requests and the H1N1 pandemic that sickened more than 60 million Americans in 2009, the Obama-Biden administration ordered the CDC to issue preventative guidance – which was enforced by OSHA. It also and developed the framework for an infectious disease standard1 that emphasized the implementation of permanent infection control practices in health facilities and certain other high exposure workplaces. This standard was not finalized by the Trump administration.

OSHA will get permanent leadership, something it hasn’t had since the departure of Assistant Secretary of Labor Dr. David Michaels on January 10, 2017. (Frustrated by the U.S. Senate’s nearly two-year-long failure to schedule hearings on his nomination for the post, Trump nominee Scott Mungo withdrew from consideration in May 2019.) The agency is overseen at present by Acting Assistant Secretary of Labor Loren Sweatt.

The number of OSHA inspectors will be increased. Biden may well do what he urged President Trump to do: double the number of investigators federal agencies like OSHA and the Mine Safety and Health Administration (MSHA) use to enforce safety and health standards. OSHA currently has 761 inspectors – down from 815 in 2016. Combined with inspectors for state-level OSH agencies, there are approximately 2,100 inspectors responsible for the health and safety of 130 million workers employed at more than 8 million worksites around the nation. That translates to about one compliance officer for every 59,000 workers.2 Onboarding and training new inspectors could take 18 months, so the enforcement effects of an expanded OSHA workforce would not be felt immediately.

Regulations or portions of regulations that were eliminated or unenforced during the Trump administration may be revived. This includes the electronic reporting requirement of the rule to Improve Tracking of Workplace Injuries and Illnesses. OSHA said the data it collected electronically would help it identify and interact with workplaces that have high rates of injuries and illnesses, with the goal of reducing incidents. Citing worker privacy concerns over the planned posting of the data online – sans identifying information – the Trump administration reduced the requirement from a detailed report to a summary report. Since the rule was adopted under the Obama-Biden administration, in 2017, Biden may move to restore it to its original form.

Other regulations, which were rolled back or whose enforcement was paused during the Trump administration’s deregulation initiative, may be put back in play. These include OSHA’s final rule to protect workers from occupational exposure to beryllium, a substance that can cause chronic beryllium disease and lung cancer. In 2017, the Department of Labor announced that enforcement of the rule would be suspended while rulemaking that would exempt the construction and shipyards industries from the rule was underway.

Additionally, a 2016-issued anti-retaliation final rule that went mostly unenforced during the Trump presidency will likely get a boost once Biden takes office. The rule prohibits employers from retaliating against employees for reporting work-related injuries or illnesses.

OSHA’s advisory committees will be reactivated. The five volunteer-staffed committees, whose members represent industry, labor, government, safety and the public, advise the labor secretary on how to improve health, safety and whistleblower protections for workers. Under the Trump administration, the Federal Advisory Council on Occupational Safety and Health and the Whistleblower Protection Advisory Committee were eliminated. The remaining three, the National Advisory Committee on Occupational Safety and Health, the Advisory Committee on Construction Safety and Health and the Maritime Advisory Committee for Occupational Safety and Health, have been largely inactive.

Not all changes will have to wait until Biden takes office. Biden has already created a Transition COVID-19 Advisory Board, to which he named former OSHA chief Dr. David Michaels. The National Safety Council (NSC) – which had called for the board to include a workplace safety expert – applauded the choice.

“We have the utmost confidence in his expertise in the midst of an unparalleled safety crisis,” the NSC said in a statement, adding, “with 157 million people in the workforce, employers play a pivotal role in curbing the spread of the virus. Notably, employers can lead on important measures such as screening, testing and contact tracing.”3

Whatever lies ahead, it’s a safe bet that the Biden administration will take a markedly different approach to workplace safety and regulations than the Trump administration. It also doesn’t require a crystal ball to predict that the coronavirus pandemic will continue to dominate the national and international conversation and that it has fundamentally, perhaps permanently, changed what the NSC aptly calls, “the world of work.” WMHS

  1. osha.gov/dsg/id/OSHA-2010-0003-0239.pdf
  2. https://tinyurl.com/y2momo8z
  3. https://tinyurl.com/y43jkv83

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