On Safety: An OSHA emergency temporary standard for COVID-19?

With the COVID-19 pandemic, several OSHA State Plan states already have issued emergency temporary standards for COVID-19. President Joe Biden recently issued an Executive Order for OSHA to consider an ETS for COVID-19 as follows, in part:

“Consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021;”

Is an ETS necessary? Yes. To protect workers and provide a consistency of protection across all 50 states, an ETS is needed. However, an ETS strictly limited to COVID-19 would be a mistake, as it would be limited to applying to only COVID-19. OSHA should issue an ETS for infectious diseases that would include COVID-19 and many other infectious agents.

The groundwork for an infectious disease standard was outlined during the Obama administration and could apply to both an ETS and a standard. The criteria can be based on the Centers for Disease Control and Prevention’s COVID-19 guidelines and the ETSs issued by some State Plan states.

Issuing an ETS – just what does that mean and include? The provisions for an ETS are outlined in Section 6 of the OSH Act. With an ETS, OSHA doesn’t have to go through the full rulemaking process. The agency can issue an ETS by skipping the requirement for notice and public comment, as well as public hearings. Once issued, an ETS becomes effective and OSHA must begin rulemaking for a permanent standard, with the ETS serving as the proposed standard. An ETS is valid until superseded by a permanent standard, which OSHA must promulgate within six months of publishing it in the Federal Register.

State Plans states are then required to adopt an ETS, although the OSH Act is not clear on how quickly they must adopt it (in normal rulemaking, the State Plan states have six months to adopt a final rule). The OSH Act (Section 6(c)(1)) for an ETS requires the following determinations to be established and included in an ETS:

• That employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards
• That such emergency standard is necessary to protect employees from such danger

If OSHA issues an ETS, what steps are necessary to issue a final standard?

After an ETS, OSHA must issue a final standard within six months of the ETS publication date. This will be the difficult – the rulemaking process is long and complicated. It has six steps, each with time frames for completion. A complete flowchart for the rulemaking can be found at osha.gov/OSHA_FlowChart.pdf.

The six steps in OSHA’s rulemaking:

1. Preliminary activities that include notices of intent, requests for information and reviews (12 to 36 months)
2. Development of a proposed standard (12 to 36 months)
3. Publishing the proposed standard (two to three months)
4. Analyzing written and public comments in the rulemaking record (six to 24 months)
5. Developing the final rule, including Office of Information and Regulatory Affairs submission (18 to 36 months)
6. Publishing the final rule (two to three months)

The total time duration varies from 52 months to 138 months. Fortunately, the ETS serves as the proposed standard, so the rulemaking process begins at Step 4 – still a time duration of 26 to 63 months. And OSHA is required to complete a final rule within six months.

OSHA has its work cut out, but an ETS is necessary and important. I’m hopeful the agency will pursue an ETS and final standard for addressing infectious disease and not just COVID-19.