After 10 months of minimal oversight, Biden orders OSHA to get to work

An executive order directs the federal agency to ramp up enforcement and look into new rules designed to stop the spread of the coronavirus.

Last week, as one of a flurry of executive orders, President Joe Biden directed the Occupational Safety and Health Administration (OSHA) to ramp up workplace safety enforcement and look into “emergency temporary standards” to force employers to do more to stop the spread of the coronavirus.

The executive order, signed on the same day the administration unveiled a national pandemic response plan, requires OSHA to update safety guidance to employers by February 4. If needed, the agency is empowered to issue new standards to require employers to follow those guidelines. 

It also directs the agency to better police employers whose violations “put the largest number of workers at risk,” and to work with labor unions, community organizations, and industry to conduct a “multilingual outreach campaign” to communities impacted by the pandemic. That likely means a renewed focus on protecting workers in meatpacking plants, and other food chain workers who have been hard-hit by the spread of the virus.

After 10 months of minimal federal enforcement, Navina Khanna, executive director of HEAL Food Alliance, a coalition that advocates for food system workers, says a renewed emphasis on worker safety during the pandemic is long overdue. 

“Hundreds of workers have died, and the death rate is 40 percent higher among essential food workers in California as a result of Covid.”

“There’s no question about the fact that tens of thousands of workers have already tested positive, there are Covid hotspots all over the country, hundreds of workers have died, and the death rate is 40 percent higher among essential food workers in California as a result of Covid,” said Khanna. “I am hopeful that workers get all of the protections they need, and that they get them without retaliation … It’s just, I’m not exhaling until we actually have the protections in place.” 

Experts say the order signals a newly aggressive approach to pandemic workplace safety, after a year in which former officials accused the agency, a division of the Department of Labor (DOL), of dereliction of its duties during the worst public health crisis in a century.

Even before the pandemic, President Donald Trump had “taken a wrecking ball” to OSHA and other federal labor agencies, said John Logan, a professor and director of labor and employment studies at San Francisco State University. Leadership positions were empty or staffed by people without relevant experience, and the number of safety inspectors dwindled to the lowest level in OSHA’s 50-year history.

Then, as the coronavirus ripped through workplaces, OSHA largely abdicated its responsibility to ensure safety, in a pattern of inaction that one expert described to The Counter as a “regulatory boycott.” 

For months, OSHA stopped enforcing a requirement to track and report cases of workers catching dangerous illnesses on the job.

Rather than require employers to enforce commonplace coronavirus safety protections, such as mask-wearing and social distancing, the agency suggested non-binding guidance based on Centers for Disease Control and Prevention (CDC) recommendations. For months, OSHA stopped enforcing a requirement to track and report cases of workers catching dangerous illnesses on the job. It also closed thousands of complaints from workers alleging unsafe conditions without conducting investigations.

As part of his executive order, Biden directed OSHA to consider issuing “emergency temporary standards,” or rules specifically designed to stop the spread of the coronavirus in the workplace. 

Currently, employers are not required to protect their workers from the virus unless they violate a “general duty clause” that requires the removal of “recognized hazards” from the workplace. Union leaders, some Democrats, and worker safety advocates have said the clause is hard to enforce, and said that the grave danger of the pandemic demands stricter, more specific rules

David Michaels, a former OSHA head who served on Biden’s transition team, told NPR that “there’s no doubt” the agency will move forward and issue a standard. If so, the safety standards could resemble those already adopted by a handful of state labor agencies.

In Virginia, for instance, employers are required to take a number of steps to stop the spread of the virus. Among them, workers who are in regular contact with the public must wear masks, and have access to hand sanitizer and clean common areas. High- or medium-risk worksites must have some ventilation controls.

“When government takes an issue more seriously, business managers tend to follow suit.”

Employers must train employees on Covid-19 prevention, and notify them when a co-worker tests positive. They must report to Virginia’s department of health any “outbreak” of two or more cases within a two-week period. Additionally, the standard prohibits retaliation against workers who speak out against unsafe conditions or wear their own PPE to work. 

Rip Verkerke, director of employment and labor law studies at the University of Virginia law school, said that standard, which was made permanent earlier this month, has sent a strong message to employers.

“My impression is that the Virginia standard has heightened awareness and caused employers to take the issue more seriously,” said Verkerke. “That’s hard to verify empirically, but when government takes an issue more seriously, business managers tend to follow suit.”

The Biden administration will continue to emphasize worker safety during the pandemic; the President’s labor department nominees, such as Martin Walsh, Julie Su, and James Frederick, all have strong track records in that area, said Logan. He expects the administration to unveil more rules and actions to protect essential workers, ranging from “hero pay” to paid sick leave, as soon as this week.

Sam Bloch is a contributing writer for The Counter, where he covers business, environment and culture. He has also written for The New York Times, L.A. Weekly, Places Journal, Art in America and other publications, and is currently working on his first book, a work of narrative nonfiction about shade, for Random House.