Biden's OSHA issues COVID-19 worker safety guidelines, considers enforceable orders

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Kyle Bagenstose and Rachel Axon, USA TODAY
·5 min read
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The Biden administration released guidelines for workplace safety Friday morning in what Department of Labor officials said was a first step toward revamping national protections for workers from COVID-19.

The guidelines say every employer should implement a COVID-19 prevention program. They list 15 potential instructions, including how to evaluate workplaces for hazards, isolate workers and clean and disinfect workplaces.

Like guidelines the Trump administration published last year, the new recommendations do not carry the weight of law. Worker advocacy groups have pressed the U.S. Occupational Health and Safety Administration to implement something stronger.

“This guidance is not a standard or regulation and it creates no new legal obligations,” the guidance reads.

In an interview with USA TODAY, Jim Frederick, the newly appointed deputy assistant secretary of OSHA, said the agency plans additional actions. In an executive order Jan. 21, President Joe Biden instructed the agency to issue the guidelines by early February. He tasked OSHA with considering whether it should issue nationwide emergency temporary standards, which would carry legal requirements for employers.

Earlier: Plagued by COVID-19 outbreaks, meatpacking industry could be forced to change under Biden

‘All smoke and mirrors’: How Trump’s meatpacking order has failed to keep workers safe

“Stopping the spread and protecting workers from COVID-19 is without question the only way to get the economy and our lives back to where we all want to be,” Frederick said. “The biggest takeaway from the updated guidance is that implementing a COVID-19 prevention program is the most effective way to reduce the spread of the virus. Employers should implement COVID-19 protection programs tailored to their workplace.”

Asked about the potential for an emergency order to turn those suggestions into requirements, Ann Rosenthal, senior adviser at OSHA, said Friday that the agency focused on creating the guidelines during the first week of the Biden administration. M. Patricia Smith, senior counselor to the secretary of labor, said the agency plans “in the next few weeks” to reach out to unions, businesses and stakeholders before reaching a decision on emergency standards.

Frederick said the agency is considering the items in Biden’s order, as well as assessing how to utilize its tools.

“The guidance issued today is the first step in that process but certainly is not going to be the last step in the process,” Frederick said Friday.

At least one industry group said the guidelines won't change what employers do.

Sarah Little, spokeswoman for the National Meat Institute, said that member employers have already implemented these guidelines and more and that coronavirus cases are down across the meatpacking industry compared with numbers in the general population.

"The vaccine is still the best tool to keep workers safe, and the industry is fighting to see that employees can receive this critical protection," she said.

​Union leaders and worker advocates touted the guidelines.

Mark Lauritsen, director of food processing, meatpacking and manufacturing at the United Food and Commercial Workers Union, said most of the suggestions laid out in the guidelines are already in place at meatpacking plants and grocers where its members work. The guidelines contain many references to OSHA workplace safety materials created under the Trump administration.

Lauritsen said he felt the new guidelines are “a little more forceful” than communications under the Trump administration, pointing to language meant to protect workers who report safety hazards from retaliation. He said that he anticipates more to come from the new administration and that an emergency standard – with enforceable rules – is needed to ensure workplace safety, particularly in plants without a union presence to advocate for protections.

“It’s a really important first step forward,” Lauritsen said.

Debbie Berkowitz, a former OSHA chief of staff and senior policy adviser at OSHA and now director of the National Employment Law Project’s worker health and safety program, said, “We’re encouraged that the agency is now going to take a real role in the administration’s COVID-19 response plan. I think this guidance is saying, ‘We’re back. OSHA’s here.’

“OSHA’s guidance has always been so helpful, and it’s always been up to date and it’s always been clear. That just hasn’t been the case for the last nine months on COVID. This is really a first step.”

Rosenthal said Friday that the guidelines call for workers to be more involved in developing a prevention plan and remove a pyramid of risk that OSHA used under the Trump administration, which categorized workplaces as high-, medium- or low-risk and made different recommendations based on that.

“There’s not language that says you should consider certain actions quite so much as the Trump guidances had,” she said. “It says you should do certain things.”

Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health, called the guidelines "night and day" compared with OSHA guidance under the Trump administration. The new guidance calls on workers to contribute to employers' COVID-19 prevention programs, emphasizing whistleblower protections when they speak out and ensuring they receive materials in the languages they speak, among other changes.

"This is absolutely a more worker-centered approach, recognizing that the workers are the eyes and the ears," Goldstein-Gelb said. "They recognize the impact of bringing home COVID and they need to be at the table with employers and with the administration, as well."

Worker advocates said OSHA’s actions, whether recommended or required, hinge on the agency’s enforcement. Under the Trump administration, OSHA officials touted the “General Duty” clause, a federal requirement that employers keep workers safe from all known hazards.

Enforcement of that requirement was rare in industries such as meatpacking, in which a USA TODAY investigation found worker deaths went uninvestigated. As of Jan. 11, OSHA had cited five meatpacking plants for COVID-19 violations, issuing a total of $69,000 in fines, although at least 240 industry workers had died, according to the Midwest Center for Investigative Reporting.

A car sporting a sign calling for a safe and healthy workplace drives past Smithfield Foods in Sioux Falls, S.D., on April 9, 2020, during a protest on behalf of employees after many workers complained of unsafe working conditions amid the COVID-19 outbreak.
A car sporting a sign calling for a safe and healthy workplace drives past Smithfield Foods in Sioux Falls, S.D., on April 9, 2020, during a protest on behalf of employees after many workers complained of unsafe working conditions amid the COVID-19 outbreak.

Asked whether OSHA intended to increase inspections or enforcement actions, agency officials did not offer specifics Friday, citing a need to ensure OSHA inspectors are kept safe from coronavirus. The Trump administration used that argument to justify a shift toward virtual inspections of workplaces, which worker advocates called inadequate.

Lauritsen said Biden’s OSHA immediately engaged with his union, and he expects the agency to take a different tack.

“We’re going to work with the Biden administration and this Department of Labor to make sure we do have active enforcement,” Lauritsen said.

This article originally appeared on USA TODAY: Biden's OSHA issues COVID-19 guidelines for worker safety