OSHA Under a Biden Administration: Key Updates

OSHA Under a Biden Administration
July 14, 2021
© 2021 CONN MACIEL CAREY LLP ALL RIGHTS RESERVED ATTORNEY ADVERTISING WWW.CONNMACIEL.COM
Eric J. Conn
Chair, OSHA Practice Group
Conn Maciel Carey LLP

ERIC CONN is Chair of Conn Maciel Carey’s OSHA Practice, where he
focuses his practice on all aspects of workplace safety & health law:
 Represents employers in inspections, investigations &
enforcement actions involving OSHA, CSB, MSHA, & EPA
 Responds to and manages investigations of catastrophic
industrial, construction, and manufacturing workplace
accidents, including explosions and chemical releases
 Handles all aspects of OSHA litigation, from criminal
prosecutions to appeals of citations
 Writes & speaks regularly on safety & health law issues
 Conducts safety training & compliance counseling
 Co-Chairs the firm’s COVID-19 Task Force
Eric J. Conn
econn@connmaciel.com / 202.909.2737

 Organizational Updates at OSHA
 OSHA’s Approach to COVID
 OSHA’s COVID Emergency
Rulemaking and Guidance
 Non-COVID OSHA Enforcement
 Non-COVID Rulemaking
Agenda

Organizational Updates at OSHA

Acting Head of OSHA – Jim Frederick
• 1/20/21 – Pres. Biden installed Jim Frederick as Principal Deputy
Assistant Sec’y of Labor for OSHA (Acting Head of OSHA)
• Frederick spent 25 years as the #2 in the EHS Dept. at the United
Steelworkers, providing technical EHS guidance to USW and other unions
• Served on numerous technical safety committees:
─ NIOSH Board of Scientific Counselors
─ ANSI Z10 Standard Committee
─ US Committee contributing to the ISO 45001 Standard
─ NIOSH NORA Traumatic Injury Prevention Council
─ NIEHS Worker TrainingNat’l ClearinghouseAdvisory Committee
─ OSHA Metal Working Fluids Standard Advisory Committee
• Post-USW, Frederick was a management-side safety consultant and
expert witness w/ ORCHSE and the National Safety Council

Nominee to Lead Fed OSHA
• Pres. Biden nominated Doug Parker for Asst. Sec’y of Labor/OSHA
• Cal/OSHA Chief for approx. 3 years
• Varied background in safety and law:
─ Head of Cal/OSHA
─ Exec. Director, WorkSafe (worker advocacy)
─ Dep. Asst. Sec’y & Sr. Policy Advisor, MSHA
─ Partner, union-side law firm
─ Staff Attorney, United Mineworkers union
• Oversaw Cal/OSHA’s COVID ETS and other rulemakings
• Cleared Senate HELP Committee w/ full Senate vote due soon

OSHA’s Approach
to COVID-19

Biden’s Day 1 OSHA Exec. Order
1st full day in Office, Biden issued “Executive Order on Protecting
Worker Health and Safety,” directing OSHA to revisit its COVID-19
strategy in 4 ways specific ways:
1. Enhance OSHA’s COVID enforcement
2. Launch a COVID-19 enforcement
National Emphasis Program
3. By Feb., OSHA to consult w/ CDC
and other agencies to update
COVID-19 workplace guidance
4. Consider whether an ETS is
needed and “if” OSHA concludes it is,
issue it by March 15th, and require State OSH Plans to adopt one

COVID-19 National Emphasis Program
• March 12 - OSHA launched a COVID-19 Nat’l Emphasis Program to:
“focus inspection and enforcement efforts
on companies that put the largest # of
workers at serious risk of contracting the
virus,” as well as prioritizing employers
that “retaliate against workers for
complaints about unsafe/unhealthy
conditions or exercise other rights
protected by federal law.”
• Effective immediately
• Accompanied by new Interim
Enforcement Response Plan (more on-site inspections)

COVID-19 National Emphasis Program
• OSHA to develop target lists for programmed inspections: (i) High risk
healthcare; (ii) High risk non-health care (e.g., warehousing and
grocers); and (iii) Non-healthcare critical infrastructure
• Workplaces already inspected in 2020 may see follow-up visit
• NEP adoption by state plans encouraged but not required
• Establishments with fewer than 10 employees are covered
• NEP to remain in place for 12 mos. but may be extended/canceled
• $100M in COVID-19 Relief Law for OSHA
• At least 5%of OSHA inspections (≈ 2,000) to be COVID-19 NEP inspections
• Establishments on the NEP list & OSHA’s Site-Specific Targeting List will
see combined COVID NEP inspection and wall-to-wall SST inspection

COVID-19 Enforcement Update
Trump Admin. OSHA
• 1,531 COVID-19 Inspections
• 279 COVID-related citations
• 3 General Duty Clause Citations
‒ All 3 citations issued to
meatpacking plants
‒ All “Serious” violations
• Most cited standards =
respiratory protection
Biden Admin. OSHA
• ≈1,000 COVID Inspections
(≈600 under COVID-19 NEP)
• ≈206 COVID-related citations
• ≈15 General Duty Clause Citations
‒ Diverse industries cited
‒ At least 2 willful violations
(w/ $137K penalty each)
• Most cited standards still =
respiratory protection

• Original proposed ETS delivered to
OMB April 27th:
─ OSHA “has determined that employee
exposure to this new hazard, SARS-
CoV-2 (the virus that causes COVID-
19) presents a grave danger in every
shared workplace in the U.S.”
─ Proposed ETS included onerous
provisions for all industries (did not
distinguish based on vaccination)
─ No accounting for small employers
ETS For All of General Industry?

COVID-19 Emergency Standard
• Proposed ETS spent 6 weeks at OMB, during which:
─ U.S. vaccination program successfully
drove down cases and deaths
─ CDC issued guidance relaxing COVID
protocols for vaccinated individuals
─ OMB took 51 stakeholder meetings
• 6/10/21 - 16 months into pandemic,
OSHA revealed a COVID ETS, but
limited to healthcare sector only
• Decision to limit ETS to healthcare
has been challenged by AFL-CIO et
al. (if successful, DC Cir. could require OSHA to extend ETS
to cover every workplace, as OSHA originally intended)

Updated COVID-19 “Guidance”
• Same day it revealed its Healthcare ETS, OSHA also released
updated COVID-19 Guidance for all employers not covered
by the ETS (i.e., non-healthcare settings)
• Guidance ≠ a mandatory standard (i.e., technically
it does not create new enforceable duties), but…
• OSHA does have an active COVID-19 NEP and has been
exercising enforcement authority under the GDC
• Tantamount to a backdoor rule?

16
• Purpose of new guidance is to help ensure employers
continue to protect non-vaccinated workers in non-
healthcare settings
• The updated Guidance:
o Shifts focus to protecting
non-vaccinated and
other at-risk workers
o Creates incentives to
encourage vaccination
o Shares links to up-to-
date CDC and other industry guidance
Updated COVID-19 Guidance

Suggested Actions
• Provide paid time off for employees to get vaccinated
• Quarantine unvaccinated workers who experience close
contact and all workers w/ COVID symptoms or test positive
• Implement physical distancing for unvaccinated workers
• Provide unvaccinated or other at-risk workers w/ face coverings
• Implicit guidance to verify vaccination status (see ETS for how?)
• Train workers on COVID-19 policies and procedures

Suggested Actions
• Suggest unvaccinated customers/guests wear face covering
• Maintain existing ventilation systems
• Perform routine cleaning and disinfection
• Record and report COVID-19 cases as applicable
• Retaliation protections
• Set up anonymous complaint system
• Follow other applicable mandatory OSHA standards

OSHA Non-COVID-19 Enforcement

Penalty Authority Keeps on Rising
Characterization
Historical
Maximums
Aug. 2016
(78% Catch-
up Increase)
Jan. 2018
(Annual Bump)
Jan. 2020
(Annual Bump)
Jan. 13, 2021
(Annual Bump – 1.2%)
Other-than-
Serious
$7,000 $12,471 $12,934 $13,494 $13,653
Serious $7,000 $12,471 $12,934 $13,494 $13,653
Willful $70,000 $124,709 $129,336 $134,947 $136,532
Repeat $70,000 $124,709 $129,336 $134,947 $136,532
Failure to
Abate
$7,000
per day
$12,471
per day
$12,934
per day
$13,494
per day
$13,653
per day

OSHA’s Repeat Violation Policies
OSHA Historically:
• Treated workplaces
as individual,
independent
establishments
• Limited its review
of employers’ OSHA
records to 3 years
• Reactive Philosophy
(less likely to revisit
workplaces within a
few years)
Under Trump:
• Return to 3 year look
back period
• Extend exemptions
due to recent
inspections
• Retire numerous
emphasis programs
and restore Reactive
Inspection Focus
• Change successorship
analysis to return to
alter ego model
Under Obama/Biden:
• Treats workplaces in
a corporate family
as 1 workplace
• Look back 5 yrs at
employers’ record
of enforcement
• Proactive Targeting
(more follow-up
inspections / hand
select past violators
for inspection)

Focus on Repeat Violations
‘02 ‘05 ‘08 ‘11 ‘13 ‘15 ‘16 ‘17 ‘18 ‘19 ‘20
Serious 58,845 61,018 67,052 62,115 56,661 47,934 42,984 36,802 36,645 36,447 28,714
Repeat
1,867
2.4%
2,350
2.7%
2,817
3.2%
3,229
3.7%
3,193
4.0%
3,088
4.7%
3,146
5.3%
2,771
5.5%
2,593
5.1%
2,471
4.8%
2,152
5.3%
Willful 331 747 517 594 319 527 524 319 341 364 384

Grain Handling Regional/Local Emphasis Program remain active:
• Reg. 5 REP (IL, WI, OH)
• Reg. 6 REP (AR, LA, NM, OK, TX)
• Reg. 7 (IA, KS, MO, NE)
– KS LEP (Wichita Area Office)
– IOSHA LEP
– NE LEP (Omaha Area Office)
• Reg. 8 REP (MT, ND, SD, CO)
• Reg 10 (Boise, ID LEP)
Apply OSHA CPL 02-01-004
(Inspection of Grain Handling Facilities) w/ focus on 1910.272
Grain Handling Emphasis Programs
23

• Programmed inspections + inspections of fatalities, complaints,
follow-ups, or referrals at grain facilities expanded under the L/REP
• NAICS Codes typically covered: Grain and Field Bean Merchant
Wholesalers, Farm Product Warehousing and Storage, Flour and
Rice Milling, Other Animal Food Manufacturing
• Inspections typically evaluate:
– Hazards associated w/ grain storage; milling operations; fertilizer, feed, and
chemical operations; and equipment repair or maintenance
– Engulfment / entanglement during bin entry, and other confined space
hazards in bins and boot pits (e.g., atmospheric, mechanical, etc.)
– Fire and explosion hazards created by combustible dust
– Falls (e.g., from atop bins/decks or rolling stock
– Other - Machine Guarding, Noise, Electrical Safety
Grain Handling Emphasis Programs
24

OSHA Enforcement Under Biden
• Significant increasesto OSHA’s budget and staffing
• Push the Protecting America’sWorker Act(OSHA Reform Legislation)
─ Increase civil penalties
─ Expandworker safety criminal consequences
─ Ease ability to prosecute individual managers forcrimes
─ Expandworker/survivor rights and involvement
• Resume attacks on VPP
• Increaseworker safety criminal investigations/prosecutions
• Increase focus and resources on whistleblower/11(c) actions
• More robustChem/Ref PSM NEP
• Revive “Regulation by Shaming” Enforcement Press Releases

Enforcement Press Releases
• Under Republicans and Democrats, OSHA issues
enforcementpressreleasesre:notableenforcement
• Press Releases issue the same day as citations and
they remain on OSHA’s website regardless of
outcome (i.e., even if citations are withdrawn)
• 463 enforcement press releases per year
during Obama Admin.
• 100% of the releases included inflammatory
and embarrassing quotes from DOL Officials
• Trump-era OSHA releases back to lower
frequency of Bush-era (≈150 press releases
per year), but continuing nasty tone

OSHA’s Regulatory Agenda
Under a Biden Administration

OSHA’s Priorities Under
the Biden Administration
• Equity, diversity, and inclusion
• Reinvigorate OSHA – Build Back Better (i.e., increase
budget and staffing)
• Improve compliance w/ the OSH Act – better protect
workers (i.e., enhance enforcement)
• Enhance support for frontline vulnerable workers and
essential industries

OSHA Rulemaking Priorities
In a Biden Administration
• Heat Illness (possibly asanother emergency rule)
• Retry the Volks Rule to extend Recordkeeping statute of limitations
• UpdateHazCom
– HCS2012updatedtoalignw/GHSRev.3(2009)
– Sincethen,GHSisuptoRev.8(2019)
• Resume PSM Reform rulemaking
• Workplace violence in healthcare rule (Congress may require it)
• Combustible Dust – back on the agenda
• Expand Electronic Recordkeeping Rule

Conn Maciel Carey
COVID-19 Task
Force Resources
30

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