I draw on this heavily but sometimes forget I forget to make a new layer so I end up drawing on the background layer instead. I am wondering if there is a way for me to make each new file I start to begin with a new layer above the background layer?
A new document would have an empty background unless you opened a psdt and in that case the new document would most likely have layers above the background layer. If you open a file and its a layered document you most likely do not want to add an additional layer every time you open the file. A conditional action step can test to see if a document is layer or not. However if an action adds a layer the action step will fail with an error if the document type does not support layers. Using a photoshop script would be a better choice to implement an open document event handler.
You could write a Photoshop script to see if the document you opened only has a background layer and if that is the case add an layer above the background layer otherwise target the layer above the background layer. Then use the script Event Manager to add this script as a open document event handler. Then any time you open an existing file a layer will be added above the background if need be. The layer above the background layer will be the current Photoshop target after you open any file. If the document can have layers. The script could be written to tell you the document does not support layers or just ignore the fact that it could not add a layer.