By Conn Maciel Carey’s COVID-19 Task Force

Here is the big update we’ve been holding our breath about – what the Biden Administration’s plans will be for federal COVID-19 emergency standards (OSHA and/or MSHA).  As we expected, in just his first full day in Office (January 21, 2021), President Biden has already issued an Executive Order focused on the agencies’ approach to managing the COVID-19 crisis in the workplace, but the answer about federal COVID-19 ETSs is not as clear as we expected, or at least, the definitive answer will come a little later.

In the Order entitled “Executive Order on Protecting Worker Health and Safety,” President Biden instructs the Department of Labor, and several other departments, to review and explore mechanisms to protect the workforce from COVID-19. This includes MSHA, by instructing:

“The Secretary of Labor, acting through the Assistant Secretary of Labor for Mine Safety and Health, shall consider whether any emergency temporary standards on COVID-19 applicable to coal and metal or non-metal mines are necessary, and if such standards are determined to be necessary and consistent with applicable law, issue them as soon as practicable.”

With greater detail, President Biden directed federal OSHA to revisit its overall strategy for regulating and enforcing issues associated with workplace spread of COVID-19.  Specifically, President Biden has mandated the Assistant Secretary of Labor for OSHA to take four key actions relative to COVID-19 in the workplace:

1. By February 4^th, OSHA must consult with the heads of other appropriate executive departments and agencies and update OSHA’s COVID-19 guidance to employers on workplace safety during the COVID-19 pandemic based on the best available scientific knowledge about virus;
2. Review OSHA’s existing enforcement efforts and strategies related to COVID-19 to identify any short-, medium-, and long-term changes that should be made to better protect workers;
3. Regardless of the outcome of that enforcement review, the Order mandates that OSHA launch a COVID-19 enforcement National Emphasis Program to focus OSHA’s enforcement resources on COVID-19 related violations and anti-retaliation protection; and
4. “Consider whether an emergency temporary standard on COVID-19, including with respect to masks in the workplace, is necessary….”

Our expectation has been that this early Executive Order would dictate to MSHA and OSHA that they must issue an ETS, rather than just to consider whether one is needed.  Perhaps this is just a formality, and the answer is preordained, but for the moment, federal COVID-19 ETSs are not a guarantee.

If (and we assume when) OSHA determines that an ETS is needed, the Executive Order does set a deadline by when OSHA must finalize and issue the rule – March 15, 2021. MSHA did not receive a deadline, instead being instructed to “issue them [ETS] as soon as practicable” if deemed necessary for coal and/or metal/non-metal mines.

Also as we expected, the Order instructs OSHA that if it adopts a federal emergency rule, it must also ensure that the 20+ federal OSHA approved State OSHA agencies also do so: “ensure that workers covered by such plans are adequately protected from COVID-19, consistent with any revised guidance or emergency temporary standards issued by OSHA . . . .”

We will continue to track developments at MSHA and OSHA under the new Biden Administration, and will share with you when we see any material changes to COVID-19 guidance from MSHA/OSHA, and/or progress towards a federal COVID-19 emergency temporary standards.  As we have seen throughout the pandemic, there remains greater pressure on OSHA with respect to providing guidance and regulating COVID-19 in the workplace, however, with the new administration in place we anticipate that MSHA will respond with regulation, likely in a fashion similar to OSHA.

For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and MSHA/OSHA regulatory developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts.  Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.