During the Trump administration, some were critical of the Occupational Safety and Health Administration (OSHA) for taking a too-relaxed approach to enforcement. The number of inspections and citations between 2016 and 2019 were lower than previous years, and OSHA was not always as vocal about its enforcement efforts. Then the COVID-19 pandemic took center stage in March 2020.
At that time OSHA appeared overwhelmed and unprepared to fully address the hazards of COVID-19 in the workplace. In February 2021, OSHA’s Inspector General (OIG) found that onsite inspection and travel restrictions led to half as many inspections between February and October 2020 as during the same period in 2019. However, there was a 15 percent increase in complaints during the same time period. During the same time period the number of citations OSHA issued were significantly less than those issued by state-run OSHA plans. OIG’s report concluded that there was “an increased risk that OSHA has not been providing the level of protection that workers need at various job sites.”
OSHA’s critics during the Trump administration saw potential for improvement in the Biden administration. Indeed, over the first year of the Biden administration OSHA has increased its enforcement activity. President Biden is also following through on his campaign promise to increase the number of OSHA investigators; possibly by as much as 100%. President Biden’s budget proposal called for 207 new OSHA enforcement employees and 63 new whistleblower investigators. A boost in the number of OSHA investigators could help to alleviate some of OSHA’s backlog. At the beginning of 2021, the number of OSHA inspectors was at the lowest since 1980.
Expect an increase in enforcement activities
If OSHA’s activities in 2021 are any indication of the next three years, employers should expect to continue to see an increase in enforcement activities. More significant enforcement citations are on the rise again, as is an increased focus on OSHA’s National Emphasis Programs (NEPs). The NEPs include combustible dust, hexavalent chromium, lead, and, of course, COVID-19. There has also been a renewed emphasis on several Regional Emphasis Programs (REPs), including heat illness, noise, and fall hazards. OSHA is also expecting a significant increase to its budget, especially in the area of enforcement. This is expected to only further increase OSHA’s inspection and citation efforts.
Also making a comeback in 2021 was a practice commonly referred to as “regulation by shaming.” Used expansively during the Obama administration, regulation by shaming is OSHA’s practice of widely publicizing citations, even before the employer has a chance to respond or the citation becomes final. OSHA has already increased the pace and number of press releases over the past year. OSHA has also increased the type and volume of enforcement data and statistics that it shares publicly. This includes providing daily COVID-19 enforcement and whistleblower data publicly available in real-time at https://www.osha.gov/data.
Employers need to pay attention
While OSHA has largely been preoccupied with COVID-19 safety and health concerns, including implementing Emergency Temporary Standards to address COVID-19 in both the healthcare and general industry, OSHA is increasingly turning its focus to other occupational health and safety issues. OSHA’s increasing inspection and enforcement data reflects this new reality. With the substantial shift in activity and priorities that OSHA has undergone in less than a year and the changes likely to occur over the next few years, it is important that employers are paying attention and are prepared to handle an OSHA inspection and are adapting to this changing landscape with minimal interruption to their business.
In addition to the NEPs and REPs noted above, OSHA’s regulatory agenda and messaging from senior officials leading into 2021 have focused on the following:
- Increased whistleblower protection enforcement;
- Increased enforcement concerning heat safety (rulemaking in progress);
- Renewed emphasis on confined spaces, especially related to tank cleaning;
- Focus on hazardous chemical exposures in the workplace; and
- Appropriate safety training for employees, regardless of language spoken.
The new year is a good time to review your workplace’s compliance with applicable OSHA regulations, including anti-retaliation policies, as well as preparing the workplace and your employees for an OSHA inspection.
