Enforcement

Attorneys representing employers expect OSHA to quickly implement President Joe Biden’s agenda for the agency including aggressive enforcement and a new COVID-19 standard, but several pending lawsuits and enforcement challenges could end up curtailing its authority regardless.

Labor unions and worker safety groups are welcoming President-elect Joe Biden’s first appointees to OSHA as a sign that the agency will move quickly on the new administration’s priority agenda for pandemic response, enforcement and a host of other issues, even before Biden names a permanent OSHA head.

President Joe Biden is poised to step up OSHA’s enforcement program, with employers bracing for heavier penalties and additional inspections including but not limited to cases involving the COVID-19 pandemic, just as the agency is finalizing an action to raise its statutory maximum penalties for enforcement actions in 2021.

Local unions are welcoming President-elect Joe Biden’s selection of Boston Mayor Marty Walsh as Labor Secretary, praising Walsh both for his overall stance on worker safety and his administration’s imposition of comprehensive workplace protections from COVID-19 -- previewing a top priority for the Biden OSHA.

President-elect Joe Biden has selected Boston Mayor Marty Walsh (D), a former president of the city’s building union, as his nominee for Secretary of Labor, following through on campaign promises to give unions a strong voice in labor policy and putting Walsh in charge of an expected push to ramp up OSHA’s enforcement efforts.

As the average age of workers rises due to delayed retirements, the economic recession and other factors, employers’ attorneys are warning companies that OSHA could step up enforcement related to ergonomics hazards that can pose a greater risk to older workers even though the agency lacks an explicit ergonomics standard.

OSHA is rolling out a new enforcement initiative that will automatically ramp up inspections of employers that fail to pay monetary penalties for past violations, as part of a broader Department of Labor (DOL) push to bolster its debt collection programs.

OSHA is updating its Site-Specific Targeting (SST) workplace inspection program to add new criteria for inspecting employers based on increases in days away, restricted or transferred (DART) among their employees, and to allow inspectors to make a case-by-case decision to switch site inspections to records reviews “in limited situations.”

The Occupational Safety and Health Review Commission (OSHRC) will hear a case testing the standard of evidence OSHA must meet to prove violations of the OSH Act’s general duty clause, after an administrative law judge (ALJ) rejected an enforcement action over a utility worker’s 2018 death near Jacksonville, FL.

Employers’ attorneys expect the Biden OSHA to step up a long list of enforcement activities, including conducting more inspections, filing more claims of “egregious” safety violations, seeking higher penalties and invoking the multi-employer doctrine more frequently, alongside a binding COVID-19 standard and other new rules.