February 6, 2023

Volume XIII, Number 37


February 06, 2023

Subscribe to Latest Legal News and Analysis

February 03, 2023

Subscribe to Latest Legal News and Analysis

OSHA Nomination Signals Greater Enforcement, New Standards

Signaling significant regulatory and enforcement changes from the Occupational Safety and Health Administration (OSHA), President Joseph Biden has named a California official to lead the agency.

Biden nominated Douglas Parker, the chief of California’s Department of Industrial Relations Division of Occupational Safety and Health (Cal/OSHA) on April 9, 2021, to serve as the Assistant Secretary of Labor for Workplace Safety and Health to lead OSHA. Parker had represented labor representatives and private and public sector unions as an attorney, and he was appointed by President Barack Obama to serve as Senior Policy Advisor and Deputy Assistant Secretary for the Mine Safety and Health Administration (MSHA). Parker left MSHA in 2019 to serve as Executive Director for Cal/OSHA, which advocates health and safety measures for workers.

While it is too early to predict Parker’s likely priorities, Biden will expect Parker to quickly promulgate and enforce a federal COVID-19 Emergency Temporary Standard (ETS), as Parker did at Cal/OSHA. The Cal/OSHA ETS has come under industry criticism and litigation over concerns related to feasibility of imposed preventive measures, paid leave requirements in connection with mandatory exclusions, COVID-19 case management procedures, COVID-19 testing, and failure to follow the Administrative Procedures Act.

Parker would step into an agency that has prioritized greater enforcement efforts, including:

  • Issuing a National Emphasis Program that focuses enforcement resources on industries at greatest hazard for spread of COVID-19;

  • Releasing an Updated Interim Enforcement Plan for COVID-19, which includes reviews of employers’ safety programs and documents prior to on-site inspections, with particular emphasis on healthcare employers; and

  • Doubling the number of compliance officers in the field, as Biden proposed before taking office. Biden proposed a budget that includes funding increases for the U.S. Department of Labor, which may be used to refill OSHA compliance officer positions left vacant under President Donald Trump.

Parker also may bring other Cal/OSHA initiatives to OSHA, such as Injury and Illness Prevention Plans, and he may revive an Infectious Disease Standard proposed under Obama.

Before leading Cal/OSHA, Parker advocated for tougher standards for workplace exposure to airborne chemical contaminants, and he has been a critic of post-accident drug testing programs that might tend to discourage injury reporting. He also has been a vocal critic of monetary employee incentives for low injury and illness rates.

If the Senate confirms his nomination, Parker would become the first to fill the post since David Michaels left it in January 2017. Trump nominated Scott Mugno for the position in October 17, 2017, but Mugno withdrew from consideration in May 2019 after the Senate failed to act on his nomination.

Jackson Lewis P.C. © 2023National Law Review, Volume XI, Number 109

About this Author

Jennette E. DePonte Employment Lawyer Jackson Lewis

Jennette E. DePonte is a principal in the Dallas, Texas, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Courtney Malveaux, OSHA Lawyer, Employment, Richmond, Virginia, Jackson Lewis Law Firm

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...

Cressinda Schlag Environmental Health Lawyer Jackson Lewis Austin

Cressinda (“Chris”) D. Schlag is an associate in the Austin, Texas, office of Jackson Lewis P.C. Her practice focuses on environmental health and safety matters involving legal and regulatory compliance as well as federal and state government enforcement actions.

Before becoming an attorney, Ms. Schlag obtained a graduate degree in occupational health and safety and environmental management and worked as an environmental health and safety engineer and consultant with a variety of industries, including, for example, oil and gas, chemicals manufacturing and...