On Thursday, January 21, 2021, President Joe Biden issued an Executive Order (Order) directing the Occupational Safety and Health Administration (OSHA) to issue revised workplace safety guidance related to the COVID-19 pandemic. This Order is in keeping with the President’s campaign platform and his efforts to otherwise deal with the pandemic.
Among other things, the Order directs OSHA to:
- Issue revised guidance within two weeks of the Order to employers on workplace safety during the COVID-19 pandemic. Use of masks in the workplace was specifically identified in the Order to be among the issues addressed.
- Consider whether a temporary COVID-19 standard is necessary and, if so, issue it by March 15, 2021.
- Review enforcement efforts and identify any changes that need to be made.
- Conduct an outreach campaign to inform workers of their rights.
The Order also directs OSHA to coordinate with states that have their own occupational safety and health programs to ensure that workers are protected. Michigan, through the Michigan Occupational Safety and Health Act, has such a program, and the Michigan Occupational Safety and Health Administration (MIOSHA) has already issued Emergency Rules related to COVID-19. Read our previous eAlert titled “MIOSHA Steps In to Fill Void Left by Invalidated Executive Orders: What Does This Mean For the Workplace?”
Lastly, the Order directs other agencies, such as the Department of Energy, the Department of Agriculture, the Department of Transportation and the Mine Safety Administration to explore ways to protect workers subject to the laws under their jurisdiction.
So what might this mean for your organization? In the near-term, it continues to be business as usual. As noted above, the state of Michigan and MIOSHA already have a COVID-19 workplace standard in place and employers should continue to abide by it. When OSHA issues a revised guidance, employers will need to determine if the revised guidance requires any changes to their preparedness and response plan as referenced in the MIOSHA Emergency Rules. If OSHA implements temporary standards, MIOSHA will evaluate them to ensure that the Michigan standard equals or exceeds the protections of the OSHA temporary standard.
Employers with operations in states that are subject to OSHA should likewise continue to abide by any existing orders, rules or standards that are in place. If OSHA issues its new standard, employers will need to comply with whatever standard, rule or order is most protective of employees. Employers subject to the jurisdiction of the Departments of Agriculture and Transportation, the Department of Energy, as well as those operating under the purview of the Mine Safety Administration, will need to be on the lookout for updated guidance.
This initiative is obviously a high priority for the new administration in Washington and is on a fast track.
We are continuing to monitor developments and will issue updates as new information becomes available. In the meantime, if you have questions about workplace safety and health issues, please contact Karen VanderWerff, DeAndre’ Harris or any member of Warner’s Labor and Employment Practice Group.
