Under former President Donald Trump, the federal government gave most employers a free pass when it came to exposing workers to the coronavirus, even in the case of large outbreaks. The inspections were few. The fines were tiny. And new regulations were nonexistent.
On Thursday, President Joe Biden plans to take his first step in reversing that approach, by signing an executive order aimed at the Occupational Safety and Health Administration, the agency responsible for protecting workers from hazards. The message is simple: It’s time to get more aggressive.
The order will direct OSHA to explore implementing what’s known as an emergency temporary standard ― a new federal regulation that would require employers to take clear precautions against the virus or face penalties. Occupational health experts and labor unions have been clamoring for OSHA to issue such a standard ever since a national emergency was declared last March. The Trump administration never moved forward with it.
The Biden administration said a new standard might include mandatory mask-wearing on job sites. Many workers have complained throughout the pandemic of employers not providing sufficient face coverings or not enforcing their use among employees and customers.
Debbie Berkowitz, a former OSHA official now with the National Employment Law Project, said she sees the executive order as a first step toward such a standard, and as a sign that “the switch will be turned back on in the agency.”
“This starts the about face of an agency that was essentially shut down under the Trump administration,” Berkowitz told HuffPost in an email.
The measure also calls for a similar rule to be pursued at the Mine Safety and Health Administration, which is tasked with protecting miners in coal and other industries. The United Mine Workers of America union applauded Biden for taking “swift and decisive action.”
The order on OSHA is one of a slew of executive actions Biden plans to take on his second day in office to address the pandemic. He will also be telling the Education Department to develop a school-reopening plan and ordering the Federal Emergency Management Agency to reimburse states for COVID-related expenses. On Wednesday, he issued a mandate that masks be worn on federal properties.
“The message is simple: It’s time to get more aggressive.”
An enforceable OSHA standard backed up by fines would mark an abrupt shift from the hands-off posture of the Trump administration. So far, OSHA, which is part of the Labor Department, has only put forth “guidance” to employers crafted in conjunction with the Centers for Disease Control and Prevention. The guidance is essentially voluntary, and undermined by weak qualifiers, like the recommendation that certain precautions be taken “if feasible.”
More than 400,000 Americans have died so far of COVID-19. Researchers have found workplace transmission to be a major driver of the pandemic, particularly in higher-risk fields like meatpacking. Outbreaks at beef and pork plants appear to play a central role in community spread, like in Sioux Falls, South Dakota, where more than 1,000 Smithfield workers were infected and the city became a leading coronavirus hotspot for a time.
Even though four Smithfield employees died, OSHA issued a fine against the company for just $13,494. Inspectors cited a vague OSHA clause for the violation because there was no clear coronavirus standard to point to.
Workplace safety experts have said a new standard would make employers’ responsibilities clearer, and make it easier for OSHA to levy fines when workers aren’t protected. Emergency temporary standards are much easier to implement than permanent regulations, since they don’t have to go through a laborious rulemaking process. Some states, such as Virginia and California, have already issued their own standards, saying federal OSHA has not done enough.
While the Biden administration could implement a COVID-19 standard relatively easily, it would take more work to ramp up the agency’s enforcement efforts. OSHA has been flooded with nearly 13,000 complaints from workers related to coronavirus, but has only opened 355 inspections based on them, according to Labor Department data updated Monday.
For the last 16 months of the Trump administration, the Labor Department was run by Eugene Scalia, a longtime management-side attorney known for fighting OSHA regulation on behalf of employers. The agency appeared to be closing out a high number of cases using the “phone and fax” method ― trading letters with employers asking them to address hazards raised by workers, rather than performing onsite inspections that more typically lead to fines.
OSHA also resisted issuing large fines above $100,000, or hitting employers with multiple fines that add up quickly. As of Jan. 8, it had levied $3.9 million in coronavirus-related fines based on 300 inspections nationwide. That equates to a fine of about $13,000 for each inspection that results in citations.
But enforcement is expected to get stronger under Biden, since the new president has plucked his personnel from the labor world. He has nominated Marty Walsh, the current Boston mayor and former building trades union official, to be his labor secretary. And he has chosen Jim Frederick, a former safety official at the United Steelworkers union, to run OSHA until he sends a formal nomination to the Senate.