Quick Hit

On January 21, 2021, President Biden signed an executive order aimed at increasing COVID-19 workplace safety measures at the federal level.  As a result, employers should expect new OSHA guidance within the next two weeks and new emergency temporary standards by mid-March.

Key Takeaways

President Biden’s Executive Order on Protecting Worker Health and Safety states that it is his Administration’s policy to protect the health and safety of workers from COVID-19 and that the federal government must take swift action to issue science-based guidance to help keep workers safe.  This suggests OSHA may take a more proactive approach regarding mandating steps employers must take regarding COVID-19 safety in the workplace.  The directive specifically identified mask wearing in the workplace as a regulation or temporary emergency standard to examine.

As we previously reported, under the Trump Administration, OSHA had only issued non-binding guidance, as opposed to emergency temporary standards or regulations, regarding workplace safety requirements amid the risks of the COVID-19 pandemic.  OSHA instead relied on existing regulations and the General Duty Clause, Section 5(a)(1) of the OSH Act, that requires employers to “provide a safe and healthful workplace that is free from serious recognized hazards.”  As of January 8, 2021, OSHA had issued citations arising from 300 inspections for violations relating to the coronavirus, resulting in proposed penalties totaling $3,930,381.  These citations were primarily centered in the health care, nursing home, and meat packing industries but more recent citations were expanding beyond those industries.

This new executive order confirms that OSHA will be taking a more active approach regarding adopting COVID-19 workplace rules.

More Details

Under the January 21, 2021 Executive Order, President Biden directed the Secretary of Labor to take several steps:

  • Within 2 weeks of the Executive Order, issue revised guidance to employers on workplace safety during the COVID-19 pandemic;
  • Consider whether emergency temporary standards on COVID-19, including whether requiring mask-wearing in the workplace, are necessary and if so, issue those standards by March 15, 2021;
  • Review OSHA’s enforcement efforts related to COVID-19 and identify any changes that could be made to better protect workers and ensure equity in enforcement;
  • Launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or violate anti-retaliation principles; and
  • Coordinate with the DOL’s Office of Public Affairs and Office of Public Engagement to provide a multilingual outreach campaign regarding workers’ rights.

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Photo of Harris Mufson Harris Mufson

Harris M. Mufson is a partner in Proskauer’s Labor & Employment Law Department, where he serves as co-head of the Firm’s Whistleblowing & Retaliation Practice Group and the Disability, Accommodation & Leave Management Practice Group. He is highly regarded as a trusted advisor…

Harris M. Mufson is a partner in Proskauer’s Labor & Employment Law Department, where he serves as co-head of the Firm’s Whistleblowing & Retaliation Practice Group and the Disability, Accommodation & Leave Management Practice Group. He is highly regarded as a trusted advisor to clients in a wide range of industries regarding significant employment issues. Harris has vast expertise in employment matters, representing employers in disputes regarding discrimination and retaliation, whistleblowing, sexual harassment, wrongful discharge, defamation, breach of contract, wage and hour, and restrictive covenants. In addition to litigating, Harris counsels clients on compliance with employment-related laws, as well as the development, implementation and enforcement of personnel policies and procedures. Additionally, he has conducted numerous internal investigations regarding sensitive employment matters.

Photo of Lexie Reynolds Lexie Reynolds

Lexie Reynolds is an associate in the Labor & Employment Law Department, and a member of the Employment Law Counseling & Training, Employment Litigation & Arbitration, and the Discriminatory, Harassment, and Title VII Practice Groups. Lexie’s practice covers a wide range of matters…

Lexie Reynolds is an associate in the Labor & Employment Law Department, and a member of the Employment Law Counseling & Training, Employment Litigation & Arbitration, and the Discriminatory, Harassment, and Title VII Practice Groups. Lexie’s practice covers a wide range of matters with a focus on internal corporate and government investigations. She has represented private and public companies, boards of directors and their committees, and individuals across many different industries including entertainment, financial services, and technology.

Lexie has advised and assisted clients in a variety of internal investigations as well as government enforcement actions involving the DOL, DOJ, and SEC. She has litigated matters at the administrative, state, and federal level, including a federal court trial. She has experience in matters involving Title VII discrimination, fraud, whistleblower activity, and retaliation.

Lexie is also dedicated to pro bono work and has represented individuals at the state administrative, federal court, and appellate levels including matters involving discrimination, veteran benefits, and immigration. Additionally, she has volunteered her time each year to mentor middle school students in a mock trial program aimed at developing public speaking, self-confidence, and awareness of legal rights.

While in law school, Lexie litigated criminal matters, representing juvenile and adult individuals in state court. Additionally, she interned at the Boston Juvenile Court and the Massachusetts Office of the Child Advocate.