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emergency COVID-19 standard also requires the filibuster would be a monumental and
notification of potential COVID-19 exposure historic change to the way bills are drafted
within one business day to exposed and passed in Congress. In this scenario, a
employees, their authorized representatives, Senate without the filibuster would enable
independent contractors, or employers at a Democrats to pass legislation dealing with
worksite. Employers are also now required the COVID-19 crisis, and more.
to maintain medical records related to
COVID-19 and provide those records to the The elections and political aftermath,
state and local health departments and however, have created a situation in which
Cal/OSHA upon request, and to track all the filibuster will more than likely survive.
COVID-19 cases in the workplace. The Democrats have 50 senators in 2021. A
tiebreaking vote by Vice President Kamala
The ongoing COVID-19 If the Biden DOL does use California’s ETS Harris would, therefore, appear to give the

pandemic has thrust as a model, employers should be ready to Democrats the votes to scrap the filibuster,
take these actions:
but multiple Democratic senators have
OSHA into the spotlight, • Draft or finalize their COVID-19 indicated they will not vote to eliminate
Prevention Programs; the filibuster. Thus, with the filibuster likely
and workplace safety • Prepare their COVID-19 exposure to remain intact, Republicans can better
thwart the Democrats’ legislative efforts,
will likely be the priority notification processes and testing protocols; even though Democrats won both Senate
• Implement new recordkeeping and races in Georgia.
of the Biden DOL. notification procedures.
While the filibuster may put a damper on
Employers should also be on the lookout a robust Democratic legislative reform
for a mask requirement in any such ETS. agenda, the Biden presidency will still
Another feature in such an ETS might be a bring a dramatic shift to the federal labor
An Emergency Temporary vaccination requirement, but this is less likely. and employment policy landscape. The
180-degree turn in regulatory employment
Standard for COVID-19 Probably No Sweeping policy priorities that will likely result

On January 21, 2021, President Biden will undoubtedly create uncertainty for
issued an executive order requiring the Legislative Changes employers, who are already dealing with a
pandemic and an unstable economy.
federal government to take “swift action” Democrats have held the U.S. House of
to protect workplaces from the COVID-19 Representatives, but they will be working The 50-50 split in the Senate does not give
pandemic. He ordered OSHA to, among with the slimmest House majority in Democrats unrestricted ability to legislate
other things, consider whether an ETS years. Democratic victories in the two on any issues, including workplace safety
for COVID-19 is necessary and, if so, to U.S. Senate runoff elections in Georgia and health. Assuming the legislative
implement such a standard by no later on January 5, 2021 means that the 117th filibuster remains intact, the Biden
than March 15, 2021. While OSHA did not United States Congress will get underway Administration would need 10 Republicans
meet President Biden’s March 15, 2021 with the U.S. Senate evenly split: 48 to support any bills. We do not think
deadline, many agree it is not a matter of Democrats (and the 2 independent that is likely to happen on any legislative
whether OSHA will issue an ETS, but when. senators who caucus with them) and changes dealing with OSHA or any other
50 Republicans. Vice President Kamala occupational safety and health issues.
Although it is expected that under the Harris will give Democrats a tiebreaking
Biden Administration, DOL OSHA will 51st vote in the Senate. The Senate But the current political environment is
different that we have ever seen.
adopt an ETS for COVID 19, some states legislative filibuster means that 60 votes
already have done so, including Virginia, are effectively needed to pass legislation The most important focus point for
Michigan, Oregon, and most recently in the Senate. employers really should be who will lead
California. With the Cal/OSHA Chief, Doug OSHA under the Biden Administration.
Parker, as part of the Biden transition Leading up to the election, there was Some of the top candidates make it clear
team, California’s recent ETS may be a much speculation regarding whether the that OSHA will be much more aggressive
sign of what’s to be expected under a Democrats would abandon the legislative than what employers have experienced
federal OSHA ETS. filibuster if they took control of the under the last two administrations.
Senate. Such a move would allow senators Therefore, employers should continue to
California’s ETS requires a written “COVID-19 to pass legislation with a simple majority
Prevention Program,” the elements vote (51 votes), rather than the 60-vote watch these appointments closely and
analyze their safety program anew to
of which mirror California’s Injury and threshold currently required. Eliminating
Illness Prevention Plan requirements. The make sure they are in compliance.

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