Key Takeaways

• President Biden has directed OSHA to issue new COVID-19 guidelines to employers

• Employers should expect imminent new OSHA guidance as well as a shift in focus for inspection and enforcement priorities

President Biden’s Executive Order on Protecting Worker Health and Safety, issued shortly after his inauguration on January 21, 2021, directed the Occupational Safety and Health Administration (OSHA) to issue a variety of new guidelines to employers for addressing worker health and safety under COVID-19 pandemic conditions.

Prior to this order, employers did not have the benefit of any specific OSHA directive regarding COVID-19; OSHA had been addressing the pandemic and the worker safety under existing OSHA requirements. OSHA’s investigative and enforcement efforts have relied particularly on the Occupational Safety and Health Act of 1970’s “General Duty Clause,” which is a catch-all provision requiring employers to provide each employee with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In connection with the COVID-19 pandemic, OSHA also looked to recordkeeping and exposure-control plans as means of insuring worker safety.

Under a prior executive order from former President Trump, OSHA operated with some enforcement discretion relative to the pandemic, which allowed it to assess whether employers had acted in “good faith” in efforts to comply with standards addressing COVID-19 conditions. President Biden’s order has set strict timelines for OSHA to set forth revised guidance to employers on workplace safety during the COVID-19 pandemic. The order also directs OSHA to consider temporary emergency standards, potentially including mandating masks in the workplace, and to provide a general review of conditions, likely aimed at promulgating specific regulations related to COVID-19 conditions.

This likely marks a shift in focus for OSHA’s enforcement and inspection priorities, and the expected guidelines will certainly bear watching.

If you have any questions about these expected guidelines, other OSHA actions, or COVID-19 and workplace safety issues, please contact:

• Thomas M. Buckley
• Michael Rubin
• Or another member of our OSHA and Worksite Safety practice