Biden Looks To Issue Quicker Fines Against Employers For COVID-19 Hazards

The Biden administration issued new, stronger guidance on coronavirus hazards to employers on Friday, a sign that the hands-off enforcement approach of the Trump years may be coming to a quick end.

Officials with the Occupational Safety and Health Administration said they hope the guidelines give businesses a clearer picture of what their responsibilities are when it comes to preventing COVID-19 outbreaks and deaths. A growing body of research suggests that workplace transmission has played a major role in driving the spread of the virus, which has killed upwards of 400,000 Americans.

Jim Frederick, a former United Steelworkers safety official whom President Joe Biden tapped to run OSHA in an acting capacity, called the guidance just a “first step.” It is not a legally binding regulation, but Biden has already ordered the agency to consider developing one.

“At OSHA, we are moving as quickly as possible, working with the entire staff across the agency to assess where we are currently and how we could better utilize tools we have in place,” Frederick said on a call with reporters Friday.

OSHA chose not to wield many of those tools under the Trump administration, essentially deferring to employers when it came to keeping workers safe from COVID-19. The agency performed very few inspections relative to worker complaints, levied relatively puny fines and typically took half a year to issue citations against employers.

Ann Rosenthal, a longtime OSHA official tapped as a senior adviser at the agency by Biden, told reporters that the new administration wants to get those citations out faster. The agency has six months by statute to build its case against an employer, but Rosenthal said they want to streamline that process so that hazards are fixed quickly and workers are protected.

“One of the big problems with the Trump administration was there were so many levels of review,” she said. “We want to stop that. We want to get [the citations] out, to propose a timely abatement timeline and to let people know what’s going on.”

Frederick said the agency was reviewing its enforcement efforts and planned to launch a national program aimed at hazards stemming from the coronavirus.

Under the Trump administration, OSHA had issued COVID-19 guidance to employers in conjunction with the Centers for Disease Control and Prevention. But much of that guidance included big qualifiers, like the recommendation that employers separate workers “if feasible.” Rosenthal said the new administration tried to dispense with such weak language.

The new guidance also calls for more worker input, advising companies to allow workers to report dangers anonymously. “Workers are the people who can best help with the hazard assessment,” Rosenthal said.

Even though the guidance creates no specific legal obligations, OSHA could point to it when issuing fines against companies under the agency’s general duty clause. That’s a vague OSHA rule that says employers have an obligation to maintain a safe workplace. Theoretically, OSHA could lean on the guidance when issuing fines, saying employers knew how to keep workers safe and chose not to.

Under Trump, OSHA issued about $4 million in fines based on 300 inspections related to the coronavirus last year. Many occupational safety experts said the fines were far too low, typically around $13,000 apiece, leaving powerful corporations with little to fear if their failure to take precautions endangered their employees. Most of the agency’s inspections appear to have been conducted by trading letters back and forth with employers, rather than poking around on-site.

A legally binding regulation specifically focused on the coronavirus would give the agency more firepower when investigating unsafe workplaces. Biden has told OSHA that if they find such a regulation to be appropriate, they should issue it by March 15.