Biden's push on workplace safety could spur ramped up enforcement, experts say

Only a day after his inauguration, President Joe Biden signed an executive order directing the Occupational Safety and Health Administration to issue updated COVID-19 guidance for workplaces.

With the president's focus on workplace safety and the updated guidance posted on Jan. 29, experts say employers should expect ramped up enforcement and inspections.

The guidance is intended to help employers and workers identify the risks of being exposed to and/or contracting COVID-19 at work and help them determine appropriate control measures such as distancing and the use of face coverings. See nwsdy.li/safework.

"We’ve been telling our clients to expect increased OSHA enforcement and activity from the Biden administration," says Todd Logsdon, co-chair of the Workplace Safety and Catastrophe Management Practice at Fisher Phillips based in its Louisville, Kentucky office.

Experts expect the same on Long Island, where OSHA inspections have fluctuated from 358 in fiscal year 2014 to 269 in fiscal year 2019 and 170 in fiscal year 2020, according to OSHA [see sidebar].

The regulatory agency also is assessing whether an emergency temporary standard for COVID-19 is necessary to protect workers. This would give employers specific, legal requirements on what to do to reduce the spread of COVID-19 in the workplace, says Logsdon, who co-authored a list of top changes expected under Biden (see nwsdy.li/OSHA).

"A temporary standard will have the force and effect of law," as opposed to the current nonbinding guidance, he says. It would expire within six months, but could likely be converted to a permanent standard, says Logsdon. Under President Donald Trump, he says, OSHA issued citations under other regulations such as respiratory protection and PPE, but not a specific COVID-standard.

Also expected under Biden is an increase in OSHA inspectors, he says.

Deborah Berkowitz, worker health and safety program director for the National Employment Law Project (NELP), a nonprofit research and advocacy organization, agrees. "I think they’ll prioritize it," she says.

As of Jan. 1, 2020, there were 862 federal OSHA inspectors, down from 1,006 in 2012, she says.

NELP has criticized OSHA enforcement under the Trump administration (see nwsdy.li/NELPreport).

Berkowitz also criticized the agency for its approach to worker safety during COVID-19, saying OSHA basically "shutdown."

Under the Biden administration "I expect a full 180 for OSHA," Berkowitz says.

OSHA in a statement to Newsday said: "The Biden administration is committed to doubling the number of OSHA inspectors."

OSHA also said: "Since the beginning of the pandemic, OSHA has employed all inspection protocols available to support the mission of protecting worker safety and health."

The agency said to date, it "has received 15,707 complaints and opened 1,741 inspections related to COVID-19." It also said OSHA performed 33,401 inspections in fiscal year 2019 and 21,674 inspections in fiscal year 2020 "in response to worker complaints, injuries and fatalities, and referrals impacted by the coronavirus."

OSHA said it investigated every complaint, and due to COVID, modified its approach to enforcement including using remote inspections.

Angelo Garcia, III, principal industrial hygienist at Syosset-based Future Environment Designs, an indoor air quality and industrial hygiene consulting firm, says employers should be prepared for "an increase in inspections." He said he saw inspections/enforcement on Long Island under Trump, but with fewer inspectors, they were quicker inspections looking for "obvious violations" like at construction sites rather than more involved multiday inspections.

He also expects to see a permanent OSHA chief named.

"We’ll have that leadership and guidance providing a direction for OSHA," Garcia says.

According to data from OSHA’s website, there were 268 violations issued on Long Island in fiscal year 2018; 365 violations issued in fiscal year 2019; and 227 violations issued in fiscal year 2020. That’s lower than the 786 issued in fiscal year 2014 and 684 in fiscal year 2015.

Whether the numbers will increase under Biden is unclear, still it’s imperative employers develop a prevention plan "to reduce injuries thus reducing the chances of a citation," says Charles Hunt, chief operating officer at ABLE Safety Consulting in Massapequa Park, which provides OSHA compliance assistance and training.

This plan should document and outline workplace safety regulations and rules equal or more stringent than OSHA standards, he says. Failing to have a solid plan, he says, can result in both injury and fines.

OSHA also announced 2021 penalties would be increasing.

That increase, Hunt says, "was already scheduled and has nothing to do with the new administration."

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