A different approach

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The Biden administration issued several new COVID-19 worker safety guidelines on Jan. 29 in what officials said was a first step in bolstering worker protections against the virus and preventing outbreaks in the workplace. The guidance from the federal Occupational Safety and Health Administration is part of an effort to create uniform nationwide standards on what’s expected of businesses.

The new OSHA guidance is just that, guidance. As with the guidance from OSHA under the Trump administration, the Jan. 29 announcement does not create legal requirements or workplace standards. The guidance includes 15 steps employers can take as part of their COVID-19 prevention efforts. They can require customers and workers to wear masks, they can cover the costs of the COVID-19 vaccine for their workers and they can set up a process for workers to anonymously report COVID-19 safety violations. Employers can also instruct infected workers or those exposed to COVID-19 to remain home, and isolate those who show up with symptoms.

And the guidelines call for much of what has already been ordered in states like New Jersey: social distancing to prevent overcrowding, sanitization and the use of personal protective equipment such as gloves and masks.

M. Patricia Smith, a senior counselor for the secretary of labor, said that the agency would be holding meetings with union heads and business executives on whether the federal government should issue emergency standards. Under the order, OSHA would have to enact them by March 15. “As directed in the president’s executive order, OSHA is currently assessing whether a temporary emergency standard is necessary to protect workers, a process reflecting developments in science and the shape of the pandemic,” Jim Frederick, the newly appointed deputy assistant secretary of labor for OSHA, said in an email.

If legal workplace standards are deemed necessary, Frederick said, then the agency will publish them. “In the meantime, the severe nature of the COVID-19 pandemic demands immediate action to prevent needless deaths and illness,” he added. “The guidance OSHA released today is the sort of clear guidance that employers need to keep their workers safe and reopen the economy.”

OSHA officials on Jan. 29 did not provide specifics on whether they would increase inspections and enforcement.

While critics have objected to the lack of legal requirements with teeth, supporters of the new guidance argue that it marks a pivot from what they said was the hands-off approach OSHA took to worker safety under the Trump administration.

Debra Coyle McFadden, who heads the New Jersey Work Environment Council, called the guidelines a “great first step” which “sends a message that OSHA will no longer be missing in action.”

“It lays out a very good set of recommendations for employers, but without an enforcement mechanism it leaves it entirely up to the employers to decide whether or not to follow OSHA’s advice,” Todd Vachon, faculty director at the Labor Education Action Research Network at Rutgers University, said in an email.

“Some will do the right thing – probably the ones that already are – but others will simply calculate the costs and benefits and make a decision on whether or not to follow these recommendations based upon their bottom line.”

Rather than COVID-19 workplace safety requirements, OSHA’s enforcement under the Trump administration hinged on the long-standing General Duty Clause, which spells out the obligation of employers to keep their establishment free of known hazards.

“By directing [OSHA] to release updated guidance that employers must follow and by beginning to enforce the law, this order will help save lives and mitigate against the spread of COVID-19,” Rebecca Dixon, executive director for the National Employment Law Project, said in a Jan. 21 statement after President Biden issued an order for OSHA to publish the guidance. “This order is a total reversal of the Trump administration’s dangerous strategy to sideline OSHA during the worst public health and occupational health crisis since the agency was created 50 years ago.”

New Jersey created its own private workplace inspection system run jointly by the Department of Health and the Department of Labor and Workforce Development and a set of uniform COVID-19 prevention standards. Gov. Phil Murphy created the system by executive order in October, following an NJBIZ report over the summer into what worker’s rights groups said was a piecemeal system for reporting workplace complaints, which ultimately fell to local authorities and health departments.

Without a state-level system of private sector enforcement, many workers said they have fallen through the cracks while business owners get away with skirting the rules, at the expense of their own safety. “Thank God guidance is coming out,” Gov. Phil Murphy said during an annual COVID-19 press briefing on Feb. 3. “We did what we did because the federal government wasn’t doing anything.”

As of Feb. 3, the state system had received 2,600 complaints, of which 1,600 have been reviewed, according to Angela Delli-Santi, a spokesperson for the Labor Department. None of those complaints have resulted in enforcement actions, such as fines or shutdowns. “Employers have come into compliance once our inspectors were able to educate and inform them of their responsibilities during COVID-19,” Delli-Santi said in an email. Employers have voluntarily complied once contacted by authorities, and provide proof such as photographs or purchase orders as evidence.

Delli-Santi said that none of the state’s private workplace enforcement in place would be affected by the recent OSHA guidance.

“Strong enforceable standards would require employers to develop workplace safety plans, implement science-based protection measures, train workers and report outbreaks,” AFL-CIO President Richard Trumka said in a Jan. 21 statement. “[T]his order is a critical first step to a comprehensive plan that will keep us safe on the job.”

Louis Kimmel, the executive director of the worker’s rights group New Labor, pointed to a limit with guidance for employers, versus an “emergency standard with teeth.”

“Responsible employers will use this to assure a culture of safety. Irresponsible [businesses] will ignore it,” he said in an email. “That said it’s a step in the right direction.”

Josh Kellermann, director of public policy at the Retail, Wholesale and Department Store Union, said that the measure is a “necessary first step to remind employers that they have a general duty to protect workers from harm in the workplace,” as the nation awaits legal requirements.