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OSHA, Labor Department, OSHRC, and NLRB: What's changing and what's anticipated

Boston Mayor Marty Walsh nominated as Secretary of Labor

President Biden nominated Boston Mayor Marty Walsh as Secretary of Labor. While Mayor Walsh would be the first former union head to lead the department in five decades, he has a reputation as a pragmatic dealmaker and a moderate with a reasonable approach to solving labor and employment issues. If confirmed by the Senate, it is expected that his priorities will be to nominate an assistant secretary of OSHA and to develop an emergency temporary standard for COVID-19. A close personal friend of the President, Walsh is expected to have significant influence.

Jim Frederick appointed deputy assistant secretary of OSHA

Jim Frederick, who helped lead health and safety for the United Steelworkers for 25 years, and was endorsed by the National Safety Council, American Society of Safety Professionals, and the American Industrial Hygiene Association as a candidate to lead OSHA, was appointed deputy assistant secretary by President Biden. In an interview with Industrial Safety and Hygiene News (ISHN), he noted that the emergency temporary standard (ETS) for COVID-19 is necessary and should be followed by reviving rulemaking on an infectious diseases prevention standard. Other points made in the interview include focusing on reducing fatalities, promoting management standards such as ANSI/ASSP Z10 and ISO 45001, putting less emphasis on chasing "the numbers" and more focus on risks, not hazards, focusing on severity and probability, and updating permissible exposures limits (PELs) that are "embarrassing."

OSHRC balance remains conservative until 2023

The Occupational Safety and Health Review Commission (OSHRC) is an independent federal agency that is not part of the Department of Labor or OSHA. The Review Commission was created by Congress to decide contests of citations or penalties that OSHA issues to employers.

The Commission has three members who are appointed by the President and confirmed by the Senate for six-year terms. President Biden recently appointed Cynthia Attwood, the progressive member, as chair. Terms for the two conservative members expire in 2023 - James Sullivan (August 2023) and Amanda Laihow (April 2023). In the past few years, the Commission has made several pro-employer decisions relating to machine guarding, repeat violations, and heat illness.

Executive order on COVID-19 guidance and possible standard

On January 21, President Biden signed an executive order calling on OSHA to accomplish two things related to COVID-19 within two weeks: (1) revise guidance on safety for workers and (2) consider whether the workforce needs an emergency temporary standard on COVID-19. The order calls for OSHA to issue a standard, which would come with fines for employers who violate the rules, by March 15, if it is "determined to be necessary." It's expected that a temporary standard will be developed in close coordination with the COVID-19 Task Force, of which David Michaels (OSHA head under the Obama administration) is a member.

On January 29, the agency issued stronger workplace guidance on the coronavirus. "Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace" provides tougher guidance and recommendations and outlines existing safety and health standards for non-healthcare work settings. The new guidance sets out 16 elements that should be in a COVID-19 protection program, outlines when workers need to quarantine and for how long, how to implement physical distancing in communal areas, and the importance of face coverings, improving ventilation, PPE, and enhanced cleaning.

The guidelines also call for employers to consider protections and "reasonable accommodations" for workers at a higher risk of severe illness from COVID-19. Further, it calls on employers to cover employee vaccinations for COVID-19 and to not distinguish between workers who are vaccinated and those who are not.

The agency's enforcement efforts have been focused on very high-risk industries, such as health care. As of December 31, 2020, the agency had issued $3.9 million in coronavirus-related fines following more than 300 workplace inspections since the start of the pandemic.

COVID-19 fatalities and imminent danger were prioritized for inspection. Most frequently cited standards included respirator fit testing, respirator medical evaluation, written respiratory protection program, fatality reporting, recording cases on the 300 log, respiratory protection training, and PPE. Unlike many state OSHA programs that rely heavily on the General Duty Clause for COVID-19-related citations, it was low on the federal list. Yet, the agency has received over 61,000 employee complaints/referrals, a number that dwarfs the number of complaints OSHA usually receives in a year. Few have been followed up with inspections.

It is expected that there will be a much broader, aggressive enforcement approach under the Biden administration, expanded COVID-19 injury and illness recordkeeping, tighter definition of "work-relatedness," increased COVID-19 related 11(c) and whistleblower/retaliation actions, and the possibility of a COVID-19 National Emphasis Program (NEP).

Six states, Virginia, Oregon, Michigan, California, New Jersey, and New Mexico have adopted workplace COVID-19 regulations and could serve as models for a federal standard. While there are some common elements, such as written plan requirements, preventive measures, training employees, and notification and reporting requirements, only some require contact tracing, testing, pay continuation during quarantine, as well as other requirements. Cal/OSHA's standard, which has a "performance-based" requirement, is considered the most onerous and has been challenged by several business groups.

A return to some Obama policies

One area predicted to be a priority is the electronic recordkeeping rule, which was modified to require certain employers to electronically submit only summary data on OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) and not the OSHA Form 301 (Injury and Illness Incident Report). At a minimum, it is expected that the information from the Form 300A that is now made public in a spreadsheet form, will be changed to a more user-friendly and searchable format. It's also expected that the agency will review the Trump policies relating to safety incentives and post-incident drug testing, which labor organizations have seen as forms of employer retaliation.

Two rules, which were overturned by Congress during the Trump administration may be revisited. One is the Volk rule that made recordkeeping requirements a continuing obligation and effectively gave OSHA the ability to issue citations to employers for failing to record work-related injuries and illnesses during the 5-year retention period, contrary to the six-month statute of limitations. The other is the Fair Pay and Safe Workplaces regulation, which established significant disclosure obligations for government contractors and subcontractors and was nicknamed the "Contractor Blacklisting" regulation.

However, without a permanent Assistant Secretary for the entirety of President Trump's term, many of the Obama policies unexpectedly remained in place and are likely to continue. The Labor Department vigorously and successfully defended the crystalline silica regulation in litigation brought by industry challenging its validity. All the NEPs established under Obama remained in place and enforcement activity and penalties increased. In 2017, OSHA set a record for the most ever $100,000 plus citations and the average penalty per serious violation climbed from $3,645 in 2016 to $5,427 in 2020, while the total number of inspections remained relatively steady.

Pending independent contractor rule will be reviewed

In early January, the DOL issued a final rule clarifying who is an independent contractor versus an employee under the Fair Labor Standards Act (FLSA). Scheduled to take effect March 8, the rule was lauded by many for providing clarity to a persistent issue during a time of workforce transformation. The rule reaffirms an economic-reality test to determine whether individuals are in business for themselves (independent contractors) or are economically dependent on a business for work (employees).

Federal agencies were directed to freeze proposed and pending regulations to give new leaders time to review pending rules and it's unknown if this will be overturned. There are several states, such as New York, California, Connecticut, New Jersey, and Massachusetts, that have stricter regulations determining who can be considered an independent contractor, which would take precedence over the federal rule.

More enforcement activity

Biden has promised to double the number of OSHA investigators but would need additional funding from Congress to do so, which could be difficult, although strong efforts to increase budget and staffing will be made. The authorized number for inspectors in FY 2020 was 818 of which about 790 were filled. The agency may also pursue more cases involving criminal and egregious penalties, ease the ability to prosecute individual managers for crimes, and focus on whistleblower actions.

While OSHA did not abandon its practice of publishing "shaming" news releases about enforcement actions, the Trump administration reduced the number significantly. OSHA is expected to return to a more active schedule similar to the Obama period, which averaged 463 releases a year.

Renewed regulatory activity expected

The goals of the new administration will be clearer in May when OSHA typically publishes its Unified Agenda of Federal Regulatory and Deregulatory Actions. Experts postulate that there will be new regulations on a variety of subjects, including workplace violence, heat illness, ergonomics, chemical exposure limits, PMS reform, modernizing LOTO, updating HazCom, and Injury and Illness Prevention Programs.

National Labor Relations Board

The NLRB has five members and primarily acts as a quasi-judicial body in deciding cases based on formal records in administrative proceedings. Board members are appointed by the President to 5-year terms, with Senate consent, the term of one member expiring each year. The ideologically balanced tradition is that the president reserves two spots on the Board for the minority party.

However, for much of the Trump administration, the Board operated with three members, all Trump appointees. At the end of his term, it had four members - three business-friendly and one labor-friendly. President Biden put the NLRB center stage when he fired two Trump-era general counsels, Peter Robb and Alice Stock after they refused to resign. It was the first time in more than 70 years that a president has exercised that power over the agency.