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Biden Administration’s Focus on OSHA, COVID-19 and What It Means for Manufacturers

Under the Biden administration, two significant and expected changes to the Occupational Safety and Health Administration (OSHA) would give the agency a greater role in reducing the spread of COVID-19 at the workplace, both of which would affect manufacturers throughout the United States.

On January 29, 2021, OSHA released “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” in response to President Joe Biden’s Executive Order issued on January 21, 2021. The guidance is not a standard or regulation and creates no legal obligations for employers, but it is a step toward fulfilling a Biden campaign pledge that OSHA would “immediately release and enforce an Emergency Temporary Standard (ETS) to give employers … enforceable guidance on what to do to reduce the spread of COVID.” In 2020, President Donald Trump’s Labor Secretary, Eugene Scalia, declined to enact such an emergency temporary standard, and instead relied upon existing standards that address Respiratory Protection, Personal Protective Equipment, Sanitation, Recordkeeping and the General Duty Clause, which requires employers to provide “employment and a place of employment [that] [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.”

As a candidate, Biden promised to be “the most pro-union president you have ever seen” and “unions are going to have increased power” in his administration. His administration has installed James “Jim” Frederick, a former United Steelworkers safety official, as the acting Deputy Assistant Secretary to lead OSHA on an interim basis. Frederick has indicated that, in that role, he will be focused on drafting and implementing an Emergency Temporary Standard to address COVID-19.

In addition, the Biden campaign publicly pledged to “double the number of OSHA investigators to enforce the law and existing standards and guidelines.” Through attrition, the number of Compliance Safety and Health Officers employed by OSHA dropped from 1,016 positions in 2010 to a historic low of 875 inspectors by January 1, 2019. Biden’s campaign declared that “at least twice the number of inspectors are needed” as a result of the “exigencies of [the COVID-19] crisis[] and the need for rigorous enforcement of workplace standards across the country.” While filling vacant positions will recover some ground, it is likely that additional Congressional funding will be needed.

Best Practices for Manufacturers

The importance placed by the Biden administration on increasing OSHA’s authority and revitalizing its workforce should be closely monitored by all employers, especially manufacturers. Manufacturers likely will find themselves under greater scrutiny by OSHA because manufacturing work (1) requires employees to work closely with one another on production or assembly lines, (2) requires multiple employees to touch the same tools or machinery, and (3) is generally not conducive to remote work. Accordingly, manufacturers should review and implement the interim guidance offered by the Centers for Disease Control and Prevention and OSHA. Manufacturers should consider modifying the alignment of workstations so that workers are at least six feet apart in all directions, installing physical barriers such as strip curtains or plexiglass to separate manufacturing workers from each other, and consulting with a ventilation engineer to ensure adequate ventilation in work areas. Manufacturers also should consider preparing employee training and education efforts and COVID-19 Prevention Plans as suggested in the OSHA guidance.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 34
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About this Author

Andrew D. La Fiura, Employment Law Litigator, Jackson Lewis, Philadelphia Law Firm
Principal

Andrew D. La Fiura is a Principal in the Philadelphia, Pennsylvania, office of Jackson Lewis P.C. He has more than 10 years of experience as an employment law litigator.

Mr. La Fiura represents clients involved in all types of employment actions in state and federal court and routinely handles administrative matters in front of the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”).  In addition, Mr. La Fiura regularly represents clients in New Jersey state and federal court actions. 

267-319-7809
Courtney Malveaux, OSHA Lawyer, Employment, Richmond, Virginia, Jackson Lewis Law Firm
Principal

Courtney Malveaux is a Principal in the Richmond, Virginia, office of Jackson Lewis P.C.

Mr. Malveaux represents employers cited by the Occupational Safety and Health Administration and other regulatory agencies. He also advises and represents employers in employment law matters, including retaliation claims, employment discrimination, unemployment benefits and wage claims. Mr. Malveaux also represents business associations in state and federal legislative and regulatory matters.

Mr. Malveaux represents industry on the Virginia Safety and...

804-212-2862
Associate

John Scull is an Associate in the Philadelphia, Pennsylvania, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Prior to joining Jackson Lewis, Mr. Scull served as a law clerk for Justice Faustino J. Fernandez-Vina of the New Jersey Supreme Court and as a law clerk for the Honorable Joseph L. Yannotti of the New Jersey Superior Court, Appellate Division.

While attending law school, Mr. Scull...

267-319-7802
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