One of President Biden’s first acts in office was to sign an Executive Order (EO) on January 21, 2021 aimed at increasing the safety and health of U.S. workers, particularly healthcare and other essential workers, against the continuing COVID-19 pandemic. To that end, President Biden instructed the Secretary of the Department of Labor (DOL), through the Assistant Secretary of Labor for Occupational Safety and Health, to issue revised guidance to employers on pandemic-related workplace safety, such guidance to be issued no later than February 4, 2021. The President also directed the Assistant Secretary of Labor to consider and, if warranted, issue by March 15, 2021, any emergency temporary standards necessary to protect the workplace, such as requiring the wearing of masks in the workplace.
The EO specifically highlights the heightened risk of COVID-19 posed to workers of color and immigrants. In furtherance of the goal of reducing the risk among vulnerable worker populations, the President encouraged the Occupational Safety and Health Administration (OSHA) to review its existing pandemic workplace safety guidance and make any changes necessary to ensure equity in enforcement of workplace safety regulations, and to coordinate with other DOL offices to increase public awareness of worker protections under OSHA, including through a multilingual outreach campaign. To add teeth to OSHA pandemic guidelines, the EO announces a national initiative focused on enforcement actions to punish OSHA violations that expose the greatest number of workers to serious risk and to deter employer actions that are contrary to OSHA’s anti-retaliation principles. The EO specifically calls on OSHA to engage directly with state occupational health agencies, state and local governments, unions, and other federal government agencies to share resources and information; identify high-risk worker populations, including those not currently protected by OSHA; and to adhere to evolving scientific standards and best practices.
This EO was one of many signed by the President aimed at addressing the political, social, economic, and public health implications of the continuing pandemic, each of which emphasize a scientific data-driven approach to fighting the virus. For example, on the same day this EO was signed, the President issued another executive order requiring interagency collaboration (including, among other agencies, the DOL) to fight the virus using the most current, reliable scientific data available through consultation with a COVID-19 Response Coordinator. We expect to see further executive action and federal agency steps to implement the new administration’s pandemic response and will update the blog with information regarding the forthcoming revised OSHA guidance as it becomes available. In the interim, to the extent employers have not already done so, they are encouraged to adopt workplace safety protocols consistent with OSHA guidance, to update their protocols as OSHA guidance evolves, and to take care to avoid any retaliatory actions toward employees raising bona fide concerns regarding workplace safety and virus exposure.