Updated: Aug 11, 2021
As one of his first executive orders, newly minted President Biden gave authority to OSHA to pursue an emergency temporary standard that would set Covid-19 workplace-safety requirements with national guidelines. Labor and business groups expect OSHA to implement a rule quickly as this action would bypass Congress and be effective immediately.
What will be in OSHA’s plan?
OSHA will likely use the California plan for businesses as a template which included worker protection and reporting requirements, fines, and a description of inspections.
Who will this affect?
This mandate would affect businesses in multiple ways. OSHA would instantly set numerous mandates on employers regarding Covid-19.
What would they likely have to do?
Businesses would have to create a detailed plan to minimize worker exposure to the coronavirus. Such a plan would include mandates on masks, physical distancing and ventilation standards. Also, the standards would be more detailed. The Centers for Disease Control and Prevention currently provides guidelines on these sorts of protections, but employers aren’t required to implement them. Additionally, since they are not binding to OSHA standards, they are not held to them in inspections.
What else would OSHA do?
The biggest change would be the enforcement of standards. Previously regarding Covid-19, OSHA only inspected health care, nursing homes, and emergency response teams. OSHA would now be empowered and mandated to perform frequent inspections over all businesses, levy more fines, issue testing mandates around businesses with Covid-19 cases, and leave room for much more civil liability. In another major shift, businesses would now be required to provide “exclusion pay” (or essentially sick pay), for every case of Covid-19 in the workplace, as the burden of proof will now fall on the employer to show that a case of Covid-19 was not contracted in the workplace.
Which industries would be most affected?
The targets will be on companies in manufacturing and those with labor unions. This would change the landscape of enforcement for the food industries and other high-risk areas for Covid-19. In meatpacking at least 239 workers have died from Covid-19 and an estimated 45,000 or more have become sick (from data compiled by the Midwest Center of Reporting). Laxity in reaction to these numbers will not fly in this next administration. Businesses can expect a major cost.
What can the companies to do prepare?
They should increase testing and capabilities for surge testing of large numbers of employees. They need preparation and documentation of employee records, interactions, symptoms, and associations. They need to be ready to perform contact tracing of their own employees. They will need to give increased reporting of cases to OSHA and be ready for OSHA inspections.
What will happen to companies that are ill-prepared for this next phase of Covid-19?
Inspections, fines, and more inspections (followed by more potential fines). The meatpacking industry had minimal fines from their collective cases and death. Smithfield Foods had $10B in revenue but only $30K in fines last year. They should expect a drastic reversal here. Additionally, civil liability will explode with this exposure and documentation by federal authorities.