President Joseph Biden has directed the Occupational Safety and Health Administration (OSHA) to revamp its efforts to protect employees from COVID-19, including workers in the construction industry. Among the instructions given in a January 21, 2021 executive order, the president called on OSHA to “consider whether” it needs to issue “any emergency temporary standards on COVID-19” and, if so, finalize such regulations by March 15, 2021. The president’s order signals a departure from OSHA’s previous approach to COVID-19, and the agency’s response will affect construction workers and their employers alike.
Since the pandemic’s beginning, OSHA has provided general and industry-specific COVID-19 safety guidelines, including several focused on construction. These guidelines, however, do not carry the force of law and cannot provide grounds for citations. At most, OSHA could point to an employer’s failure to follow these guidelines as the basis to issue a citation under the OSH Act’s general duty clause, which requires workplaces “free from recognized hazards” posing the risk of death or serious harm. Previously, the construction industry pointed to this requirement and the industry’s prompt response to address COVID-19 risks to persuade OSHA to keep from exercising its emergency regulation powers. OSHA may use these powers to protect workers facing grave dangers, and they allow OSHA to issue, without public input, emergency temporary standards to take effect immediately.
The Biden administration, however, commanded OSHA to rethink its prior restraint in using those powers. In all likelihood, OSHA will respond by issuing COVID-19 emergency regulations. These new laws will provide OSHA greater power to cite employers for COVID-19 hazards, but will also clarify employers’ obligations to their workers.
Some states with their own OSH Act workplace safety programs experienced this when they implemented their own emergency rules, and these regulations will likely become the model for OSHA’s. For example, the Virginia Safety and Health Codes Board issued emergency temporary standards (eventually made permanent) that covered a wide scope of COVID-19 requirements: masks, hand washing and sanitizer stations, ventilation, notice of worker infections, isolation and quarantine requirements for ill and exposed workers, and reporting to the state agencies.
The order, however, did much more than just push OSHA to issue emergency regulations. It also directed OSHA to:
- Revise current COVID-19 workplace safety guidance by February 4, 2021 (OSHA already did);
- Reassess enforcement efforts related to COVID-19 to identify changes that promote worker safety and ensure enforcement equity;
- Focus national enforcement efforts related to COVID-19 on violations pertaining to larger employers and to retaliatory conduct;
- Implement a “multi-lingual outreach campaign” about workers’ rights in conjunction with unions and other stakeholders.
With such emphasis on enforcement, collectively these measures will likely mean more inspectors conducting more inspections in more industries and issuing more citations.
To prepare for OSHA’s administration-led increase of COVID-19 regulations and enforcement, contractors should first check their current compliance with existing federal and state standards, such as the CDC guidelines and state and local construction industry COVID-19 requirements. For OSHA’s expected new regulations, contractors will need to understand the regulations’ scope and their implications for construction work and then develop programs to ensure workers in the field actually follow these requirements.
Nonetheless, new safety laws demand new safety procedures, and these changes will present challenges to even the most safety-conscious construction companies. Competent OSHA counsel can assist with meeting these challenges. The lawyers at Cohen Seglias continue to monitor this evolving COVID-19 regulatory landscape to prepare to give timely and effective counseling to construction industry members.