On April 12, President Joseph R. Biden appointed current Cal / OSHA chief Doug Parker as head of federal OSHA. If confirmed, employers should prepare for the potential that California law enforcement may reach federal law.
President Biden is committed to making improving working conditions a central tenet of his administration, including supporting changes to federal OSHA and the national labor relations law. Parker’s appointment is in line with a trend of increased employer enforcement by federal regulators.
Cal / OSHA and COVID-19
Parker could have an immediate impact when it comes to federal OSHA’s COVID-19 enforcement efforts. As of April 5, California has issued 203 citations to employers for safety concerns related to COVID-19. This compares to just 408 citations across federal OSHA as of April 12. California’s per capita app overshadows federal efforts.
California has also implemented a rigorous and detailed temporary emergency standard for COVID-19, which includes requirements related to ventilation improvements, contact tracing, outbreak procedures and two mandatory COVID testing. times a week for employees under certain circumstances. Three other states with a state plan – Virginia, Michigan and Oregon – have also implemented emergency standards for COVID, but they are not as detailed or onerous as those in California .
Federal OSHA has already taken action to increase enforcement of COVID by announcing a National accent program. Momentum for a temporary federal emergency standard for COVID-19 appears to have halted as vaccinations increase and new DOL leadership assesses issues to cover; but OSHA has not indicated its intention to abandon the pursuit of an ETS altogether. If Parker follows the California approach to the regulations, it would be a significant departure from federal OSHA’s current position of providing COVID-related advice and enforcing that advice through the general duty clause. OSHA.
Additional application priorities
More generally, Cal / OSHA standards are more stringent than federal standards on a number of issues. For example, California standards for Permissible Exposure Limits (PELs) for several chemicals are lower than federal limits. California also maintains standards for injury and disease prevention programs, ergonomics, aerosol transmissible diseases, and a number of other areas that are unique from federal law. California also maintains an unreasonably rigid approach to COVID-19 notification and registration. While Parker is unlikely to submit all of these California enforcement standards and initiatives to federal OSHA, he will likely seek to change federal regulations using California as a model.
Finally, Parker also worked in the Federal Department of Labor under the Obama administration as Assistant Under Secretary for Policy with the Mine Safety and Health Administration. Many observers expect federal OSHA to bring back some Obama-era policies, including a focus on fighting retaliation and publicizing security breaches in a more meaningful way through a more meaningful approach. of “regulation by shame”.
Parker still faces confirmation from the Senate and no hearing has been scheduled yet. Nonetheless, employers should ensure that their health and safety policies are up to date and that safety personnel are prepared for a potential increase in inspection activity and citation risks from federal OSHA, both before and after Parker probably takes the helm.
Copyright © 2021, Hunton Andrews Kurth LLP. All rights reserved.Review of national legislation, volume XI, number 111