If there’s one thing that most people can agree on, it’s some measure of relief that the year 2020 is behind us. It was a time of constant disruption and uncertainty, and while change will continue to be the norm in 2021, we’re all hoping the changes will be a little less painful. What might the New Year hold for the environment, health, and safety (EHS) field and its dedicated professionals?
To understand where we may be headed over the next twelve months, let’s take a look at some recent developments and how they will impact future health and safety initiatives as well as EHS compliance.
The Continuing Influence of COVID-19
While the recent rollout of COVID-19 vaccines is a reason for renewed optimism amid the devastation of the worldwide pandemic, this should be tempered by the understanding that a return to some semblance of “normal” is still a long way off. Businesses and their EHS teams must remain vigilant against the health and safety threat posed by the virus and ensure that employees take appropriate precautions.
The pandemic may also become a compliance issue for EHS. In recent months, several states have taken action with emergency temporary standards (ETS) related to COVID-19 in the absence of any federal action on the matter. California, Oregon, Michigan, and Virginia have all enacted legislation implementing workplace safety measures to address the pandemic, with the possibility that other states may follow suit. California’s ETS has recently been challenged in a lawsuit filed by several employers.
There is a possibility of additional action at the federal level under the incoming Biden administration. Among the members of the Biden-Harris COVID-19 Advisory Board is David Michaels, PhD, MPH, an epidemiologist and previously the longest-serving head of the Occupational Safety and Health Administration (OSHA). During Dr. Michaels’ tenure at OSHA, infectious disease rulemaking was begun but not completed, and it was later removed from the Department of Labor’s regulatory agenda. Even if emergency action specific to COVID-19 is not approved at the federal level, other workplace infectious disease rules may be passed in the near future as a response to lessons learned from the pandemic.
A New Presidential Administration
Of course, the results of the 2020 presidential election will have ramifications for EHS compliance beyond COVID-19. Generally speaking, the Trump administration pursued a deregulatory agenda and emphasized compliance assistance over enforcement when it came to matters of environment, health, and safety. While several last-minute rules are in play, it’s widely expected that the incoming Biden administration will take a different approach going forward.
This new approach, heavily focused on climate concerns, is reflected in Biden’s nominations for environmental leadership positions, which include:
Michael S. Regan for EPA Administrator;
Congresswoman Deb Haaland for Secretary of the Interior;
Governor Jennifer Granholm for Secretary of Energy;
Brenda Mallory for Chair of the Council on Environmental Quality;
Administrator Gina McCarthy for National Climate Advisor; and
Ali Zaidi for Deputy National Climate Advisor.
A New Environmental Era May Drive Sustainability Initiatives
These changes in leadership will almost certainly lead to more public emphasis on proactively addressing environmental matters within the business world. This will also likely lead to additional regulation, but this is not necessarily a bad thing—in recent years, many in industry have actually come out in support of environmental regulation, bucking the long-held stereotype that businesses will always oppose such measures.
Forward-thinking organizations are always looking to move beyond compliance regardless of the regulatory atmosphere, from constructing robust safety cultures to promoting corporate sustainability. While the specifics regarding any new environmental regulation in 2021 remain unknown, EHS professionals can take a proactive stance by prioritizing sustainability initiatives in a way that is comparable to their approach to safety culture.
So, What’s Next for OSHA?
The Trump administration will mark the first time in OSHA’s history that the agency was without a leader (that is, a Senate-approved Assistant Secretary of Labor) for an entire presidential term. This hasn’t gone unnoticed by workplace safety advocates, and OSHA has been almost universally lambasted for its response to the workplace safety threat of COVID-19 (or lack thereof).
In a presentation titled OSHA’s 2020 in Review and 2021 Forecast, attorney Eric J. Conn from Conn Maciel Carey LLP indicated that filling this leadership gap will likely be a priority of the incoming Biden administration. While as of this writing formal nominees have not been settled on, some potential candidates to lead OSHA include Debbie Berkowitz, a senior policy adviser for OSHA under former President Obama; Doug Parker, Chief of the California Division of Occupational Safety and Health (Cal/OSHA); and Jim Frederick a former EHS technical advisor for United Steelworkers (USW).
According to Conn, other potential developments for OSHA in 2021 and beyond include:
A reinvigorated COVID-19 Task Force, which would include a COVID-19 ETS within the first 100 days, a National Emphasis Program, expanded COVID-19 injury and illness recordkeeping, and increased whistleblower/retaliation protections related to COVID-19.
A return to form for enforcement and inspection efforts, including an increase in worker safety criminal investigations and prosecutions, more complex inspections, and greater restrictions in flexibility on settlements.
More frequent (and pointed) press releases related to enforcement cases, often referred to as “regulation by shaming,” to call attention to repeat and/or serious safety violations.
Advancement of the Protecting America’s Workers Act, a legislative act reforming OSHA that would, among other things, increase civil penalties, expand the circumstances that would result in criminal charges for egregious workplace safety failures, and expand the rights of workers and survivors and their involvement in workplace safety cases. (This would likely be on the table only in the event of a Democratic-controlled U.S. Senate.)
Prepare for a Better, Safer Future with Technology
As we continue into 2021, one thing can be depended upon—the future will always be shaped by new innovations and technologies. Regardless of the size or type of challenges that may rise to face them, EHS professionals should ensure that they have the right tools for the job. In an outlook that appears to be heavily shaped by compliance, comprehensive regulatory libraries and responsive, accurate systems for EHS auditing are a must. The only thing to be feared in the new year is a lack of preparedness!