Hunton Employment & Labor Perspectives

President Joseph R. Biden on April 12 nominated current Cal/OSHA Chief Doug Parker to lead federal OSHA.  If confirmed, employers should prepare for the potential that California-style enforcement may reach the federal law.

President Biden has pledged to make improved working conditions a central tenet of his administration, including support for changes to federal OSHA and the National Labor Relations Act.  Parker’s nomination is consistent with a trend towards increased enforcement of employers by federal regulators.

Cal/OSHA and COVID-19

 Parker could make an immediate impact with respect to COVID-19 enforcement efforts by federal OSHA.  As of April 5, California issued 203 citations to employers for safety issues related to COVID-19.  That compares to only 408 citations across all of federal OSHA as of April 12.  California’s per-capita enforcement dwarfs federal efforts.

California also implemented a rigorous and detailed Emergency Temporary Standard for COVID-19, which includes requirements related to ventilation improvements, contact tracing, outbreak procedures and twice-weekly mandatory COVID testing for employees in certain circumstances.  Three other state-plan states – Virginia, Michigan and Oregon – also have implemented emergency standards for COVID, but they are not nearly as detailed or burdensome as California’s.

Federal OSHA has already taken steps toward increased COVID-related enforcement by announcing a National Emphasis Program.  Momentum for a federal emergency temporary standard for COVID-19 appears to have stalled as vaccinations increase and new DOL leadership evaluates the issues to cover; but, OSHA has not indicated that it intends to abandon pursuit of an ETS altogether.  If Parker follows the California approach to the regulation, it would be a significant departure from federal OSHA’s current posture of providing guidance related to COVID and enforcing that guidance through OSHA’s general duty clause.

Additional Enforcement Priorities

More generally, Cal/OSHA standards are stricter than federal standards on a number of issues.  For example, California’s standards for permissible exposure limits (PELs) for several chemicals are lower than federal limits.  California also maintains standards for injury and illness prevention programs, ergonomics, aerosolized transmissible disease, and a number of other areas that are unique from federal law.  California also maintains an unreasonably rigid approach to COVID-19 reporting and recording.  While it is unlikely that Parker would bring all of these California standards and enforcement initiatives to federal OSHA, he likely will seek federal regulatory changes using California as a model.

Finally, Parker also worked in the federal Department of Labor during the Obama administration as a Deputy Assistant 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 anti-retaliation and publicizing safety violations more significantly through a “regulation by shaming” approach.

Parker still faces Senate confirmation, and no hearing has yet been scheduled. Still, employers should ensure their health and safety policies are up to date, and that safety personnel are prepared for potential increased inspection activity and citation risk by federal OSHA, both before and after Parker likely takes the helm.