The Biden administration has told OSHA to look into an emergency COVID-19 regulation for businesses but doesn’t mandate one as part of its overall plan.
In a 200-page document, National Strategy for the COVID-19 Response and Pandemic Preparedness, a section on protecting workers says:
“The President issued Executive Order Protecting Worker Health and Safety which directs the Occupational Safety and Health Administration (OSHA) to issue updated guidance on COVID-19 worker protections. It also directs OSHA and the Mine Safety and Health Administration (MSHA) to consider whether emergency temporary standards, including with respect to mask-wearing, are necessary.”
Two important words in the section are “guidance” and “consider.”
Guidance doesn’t carry the same weight as a regulation. However, OSHA can use guidance it creates to issue citations under the General Duty Clause for failing to keep workers safe from the coronavirus.
And directing OSHA and MSHA to “consider … emergency temporary standards” stops short of mandating new regulations.
A new interim head of OSHA started work on Jan. 20 to advance the Biden administration’s plan for the agency’s role in keeping workers safe during the pandemic.
The deadline for issuing an ETS, if there is one, is March 15, 2021. New guidelines are due to be issued no later than Feb. 4, 2021.
The Executive Order on Protecting Worker Health and Safety also calls for:
- a review of OSHA enforcement related to COVID-19 to identify changes to better protect workers
- launch a national program to focus OSHA enforcement efforts related to COVID-19, and
- conduct a multilingual outreach campaign to inform workers of their rights under applicable law.