ILMA Compoundings - June 2021 - 40

WASHINGTON LANDSCAPE
Reemergence of OSHA
Enforcement
By Matthew Levetown
O
n the campaign trail last year,
then-candidate Joe Biden
promised many changes as
part of his desire to win over workers
and labor unions, chief among them
the doubling of Occupational Safety
and Health Administration (OSHA)
enforcement. Over the course of
2020, now-President, Biden mirrored
complaints from organized labor in
calling out OSHA's perceived failure
to create COVID-19 safety standards
and the agency's regionally inconsistent
approaches to inspections under its
" general duty " clause. The pandemic
served as the final straw for labor
groups that criticized OSHA under
President Donald Trump for a significant
reduction in agency investigations
and enforcement, exacerbated by a
decline in the number of OSHA
personnel. As one might expect, the
Biden administration's promised policies
are the inverse of those of Trump,
so there are some things ILMA
members should be prepared for over
the next four years.
The first will be expected Senate
confirmation of an OSHA administrator
- a position that has not been
filled since the Obama administration.
Early in his tenure, Biden appointed
James Frederick, a long-time union
advocate, to temporarily head the
agency. Although some predicted
that Frederick would be nominated
as the permanent administrator,
Douglas Parker, the current director
of California's state OSHA, instead
was nominated in early April. Work
40
JUNE 2021 | COMPOUNDINGS | ILMA.ORG
done by acting heads often faces legal
challenges of that person's authority
to carry out the duties of the office
while their nomination is pending,
so confirming Parker would undercut
one key avenue of legal challenge to
expanded OSHA authority.
POTENTIAL REGULATIONS
Two regulations are expected from
OSHA as a continuation of agency
rulemaking from the Obama-Biden
administration. First is the application
of the full Obama-era electronic
reporting rule for employee injury
and illness. Although the rule was not
repealed, some elements of the rule
were never implemented - like the
open publication of full Form 300s
on OSHA's website. There are some
key worries around the publication
of these data, namely worker privacy.
Most people are unaware that employers
are typically not covered entities
under the Health Insurance Portability
and Accountability Act, which
contains an exception for " public
health activities " (which could include
government reports). It is possible that
publication of reports by OSHA will
result in underreporting of illness and
injury data by workers and employers
to keep medical information private,
defeating a key purpose of the electronic
reporting rules.
Second, OSHA may also seek to
finalize an infectious disease standard,
which is facing renewed interest
because of the COVID-19 pandemic.
The Obama administration worked
on developing an infectious disease
standard to cover transmission of
illness via air, contact and droplets in
high-risk environments. Like the existing
bloodborne pathogens standard,
the original standard would have been
limited to health care and high-risk
environments, such as pathogen
research labs. It is possible that, if the
http://www.ILMA.ORG
ILMA Compoundings - June 2021

Table of Contents for the Digital Edition of ILMA Compoundings - June 2021
