On January 21, 2021, President Joe Biden used his first full day in office to issue an Executive Order focused on increased COVID-19 protections for the nation's workers, including the most vulnerable essential employees. As a result, employers can expect new guidance and requirements from the federal government on workplace safety in the coming days.
Biden's Executive Order on Protecting Worker Health and Safety (the "Order") requires the U.S. Department of Labor (DOL) to issue revised guidance to employers regarding workplace safety during the COVID-19 pandemic by February 4, 2021. Further, the Order instructs the DOL to consider whether any temporary, emergency workplace health and safety standards are necessary, including standards regarding masks in the workplace, and to issue such standards by March 15, 2021.
The Order also calls for the DOL to review the Occupational Safety and Health Administration (OSHA)'s response to the COVID-19 pandemic to identify any areas of improvement, and to coordinate with regional OSHA offices to inform workers and workers' representatives of their rights under applicable laws. The DOL must also launch a national program to crack down on violations of OSHA's COVID-19-related safety efforts that put the largest numbers of workers at risk or that run afoul of applicable anti-retaliation provisions.
Further, the Order urges cooperation between the DOL and state-level agencies to ensure that all states are taking the steps necessary to protect workers from COVID-19. It also calls for the Secretaries of Agriculture, Labor, Health and Human Services, Transportation, Energy, and any other appropriate agency leadership to collaborate and explore mechanisms that will protect all workers from contracting COVID-19, including workers who may not be covered by the protections of the Occupational Safety and Health Act.
Exactly what action the DOL and other federal agencies will deem necessary to carry out the President's Order remains to be seen. However, the Order signals that the federal government will be taking a larger role in workplace safety issues related to COVID-19 under the Biden administration than it did under the Trump administration. Foley Hoag will continue to keep clients apprised of developments in this area.
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