Will OSHA Be Obama 2.0?
Be Aware Safety Tips
By Laura Helmrich-Rhodes, CSP, Ed.D.
I
t is no secret that the Democrats are considered more worker/ union friendly, and prefer regulations and citations over offering more employer compliance assistance. President Biden has been quoted as saying he will be the “strongest labor president.” As administrations change, one must wonder what the next era of the Occupational Safety and Health Administration (OSHA) will look like; specifically, what will be the inspection priorities and where will budget dollars be spent compared to a more conservative approach?
Top-Down Approach
The Trump administration did not nominate an assistant secretary of labor for OSHA during his term of office, relying instead on political appointments. Lauren Sweatt continued operations and stepped down in January. As this article was being completed, it was announced that James Frederick, a former environmental health and safety (EHS) technical advisor for the United Steelworkers (USW), would become deputy assistant secretary at OSHA. Frederick will likely work under Marty Walsh, President Biden’s nominee for secretary of labor, who worked closely with MassOSH, labor unions and community groups and is a card-carrying union member from his younger days as a laborer (Industrial Safety and Hygiene News magazine, Jan. 14, 2021). Walsh is a past labor union president and a supporter of the “Protecting the Right to Organize Act,” a bill introduced by congressional Democrats in 2019 and reintroduced in February 2021. An interesting twist, and an expansion of government operations, is an additional OSHA administrative role created during the first days of the Biden Administration. The “OSHA COVID-19 Advisory Board” includes Dr. David Michaels, former assistant secretary of labor for OSHA during the Obama administration. A highly educated epidemiologist with OSHA experience, Dr. Michaels is well qualified to fill this add-on to the bureaucracy.
Increased Regulatory Oversight?
Typically, when the administrations flip to a more liberal president, there is a call for the emphasis on increasing the number of regulations and employing more compliance officers. (Do you recall President Trump’s emphasis on eliminating two regulations for every one passed?) Such is the rallying cry in 2021 as well as increased OSHA regulations and enforcement. What remains to be seen, at the writing of this article, is if there will be an OSHA Emergency Temporary Standard (ETS) for COVID-19 protections. Surely, with the addition of Dr. Michaels, it will happen quickly. EHS Daily Advisor
predicts there “will be a National Emphasis Program (NEP) with increased whistleblower protection, and regulation by shaming.” That translates to OSHA media drawing widespread attention to serious/repeat violators. OSHA has levied citations and issued large fines against employers for COVID-19 protection violations. Those initial actions have been well published in the media; however, the court cases or the success/failure of those cases have not been well published. Furthermore, most of those cited have been health care related and meatpacking entities. For OSHA to be more likely to prevail in court, a specific standard would serve them better than stretching current requirements (for example, a written respiratory protection program) or using the General Duty Clause of the Act to cite employers. Several U.S. senators have said the fines that have been issued have not been high enough and will not have an impact on protecting workers. On that note, increased penalties were announced and went into effect Jan. 16, 2021. The maximum penalty for serious and other-than-serious violations is now $13,653 per violation, up from $13,494. The maximum penalty for a willful or repeat violation is now $136,532 per violation, up from $134,937. It is reported that penalties have risen 80 percent since 2016. Other changes include an increased effort to collect fines.
What to Expect with COVID and OSHA Compliance
Per OSHA, under certain limited conditions, the agency is authorized to set Emergency Temporary Standards (ETS) that take effect immediately and are in effect until superseded by a permanent standard. OSHA must determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards, and that an emergency standard is needed to protect them. OSHA then publishes the ETS in the Federal Register, where it also serves as a proposed permanent standard. It is then subject to the usual
Laura Helmrich-Rhodes, CSP, Ed.D., is an independent regulations compliance consultant to the Spring Manufacturers Institute (SMI). A former member of PA/OSHA Consultation, she is an associate professor in the Safety Sciences Department at Indiana University of Pennsylvania where she teaches graduate and undergraduate classes on topics such as OSHA standards, safety communications, workers’ compensation and human relations. Rhodes is available for safety advice and information. Contact SMI at 630-495-8588 or laurahrhodes@gmail.com.
SPRINGS / Spring 2021 / 13
