President-elect Joe Biden has vowed to issue mandatory workplace safety rules that employers must follow to protect workers from coronavirus exposure. It’s likely to be one of his first big fights with American business and a test of how far he can go to create a national strategy to slow a pandemic that is still raging out of control.
Employers, which until now have been treated to a flurry of optional guidelines by the Trump administration that have been revised and rewritten throughout the coronavirus crisis, are bracing for the new Biden rules.
Biden and his allies believe that a national set of rules for employers could help workers return more quickly to offices and other workplaces since everyone would be following the same emergency standard, rather than a patchwork of state-by-state, county-by-county regulations.
“We cannot successfully restart our economy until workers are safe — and the first step is to require that businesses implement very basic measures to prevent the virus from spreading in the workplace,” said Debbie Berkowitz, a senior policy adviser for the Occupational Safety and Health Administration under President Barack Obama who’s now with the National Employment Law Project. “To stem the growing number of cases, hospitalizations and death from COVID 19, it is critical that OSHA, or the Biden administration, promulgate an emergency temporary standard immediately to mitigate the spread of this disease at work and then back out into the community.”
But Republicans and the business community are likely to come out strong against any such broad mandates.
“If done the wrong way, if it’s implemented as a strict regulatory requirement with little flexibility, I think it will be difficult for many businesses to implement,” Neil Bradley, the U.S. Chamber of Commerce’s chief policy officer, said during a press call this week. Ultimately, he said, it “will hold back both fighting the coronavirus and restoring the economy.”
The issue threatens to set up a contentious battle in the lame duck session of Congress, when lawmakers debate a new coronavirus relief package.
Senate Majority Leader Mitch McConnell and other Republicans are demanding a robust liability shield for businesses and schools as a condition for a new aid package — a provision that former OSHA officials say would strip Biden of the ability to enforce Covid-19 workplace protections.
As part of his plan to combat the coronavirus, Biden says he will direct his administration to issue the so-called emergency temporary standard, which would lay out specific precautions that employers must take to protect their workers from exposure to the virus.
The standard isn’t likely to fully take shape until the new administration assumes control of the government, but a former OSHA official predicted it would at least mandate the Centers for Disease Control’s guidelines, which broadly suggest allowing for social distancing, frequently disinfecting the workplace and providing protective equipment like gloves, goggles or face masks.
Implementing such a rule is something the new president could do quickly, even without Senate-confirmed leadership at the Labor Department or OSHA, according to two former senior OSHA officials.
Unions and labor advocates have slammed OSHA over its response to the pandemic. While the worker safety watchdog has cited companies for coronavirus-related risks over the past several months, large corporations have received meager fines in cases where their workers fell ill or have even died from the coronavirus. OSHA has also used its special enforcement powers far more leniently than previous administrations.
Unions say that much of the problem lies with the flexibility the watchdog has given to employers and the influence businesses have had over its enforcement efforts.
But flexibility is what businesses want to maintain.
The Chamber’s Bradley said that while he’s confident the Biden administration will listen to businesses’ position, any emergency standard would need to “be flexible enough to recognize” employers’ ability to implement public health safety measures and to “accommodate the differences in how businesses operate.”
“There is a big concern,” said Robyn Boerstling, who oversees human resources policy issues at the National Association of Manufacturers. “Every manufacturing facility is generally different. They make different things, they have different procedures, they have different assembly lines, production processes. So, manufacturers need flexibility in different ways to implement their controls.”
Boerstling says Biden’s plan will leave businesses with little room to weigh in on how the rules affect their specific industry once the emergency standard is in place.
When OSHA determines workers are in “grave danger,” the agency is able to issue emergency temporary standards that take effect immediately. The emergency standard stays in place until a permanent final rule is issued, but the agency will accept public comments on the standard during that period.
“An ETS is very immediate,” Boerstling said. “It’s permanent until it’s not permanent.”
The American Hospital Association, which represents more than 5,000 hospitals and health care providers that would be heavily regulated under any such infectious disease rule, suggested that an emergency infectious disease standard could hinder the health response to the virus.
The organization issued a fact sheet warning its members that an emergency standard would create “a new layer of conflicting and unnecessary regulatory burden at precisely the wrong time,” putting a strain on supplies of protective equipment and limiting hospital capacity.
“Unions have reported filing numerous OSHA complaints against hospitals; such actions could force hospitals to dramatically reduce their inpatient capacity rather than potentially expose themselves to very large fines,” the fact sheet said.
The maximum fine OSHA can issue against an employer is $134,937 per violation, when an employer’s breach of safety rules is considered “willful” or is a repeated violation. For other violations, including “serious” and “other than serious” offenses, the safety agency’s fines max out at $13,494 per infraction.
Such concerns were what prompted McConnell to push for Covid-19 liability protections — including shielding employers from being fined under federal safety laws — warning that “one-size-fits-all” rules would prompt “an epidemic of lawsuits” against employers who can’t comply.
But with both of Georgia’s U.S. Senate seats facing runoff elections that will determine which party controls the upper chamber, the GOP’s negotiating posture over another aid bill is weaker than when McConnell first made those calls.
While there’s little chance Democrats would be willing to limit their incoming president’s ability to police workplace safety in exchange for an aid bill in the lame duck, McConnell seems in no mood to drop his demand for liability protections.
“It should be highly targeted, very similar to what I put on the floor in October and September,” he said of the next aid bill during a press conference on Capitol Hill Tuesday.
This blog originally appeared at Politico on November 13, 2020. Reprinted with permission.
About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter.