OSHA moves closer to issuing emergency temporary standard on COVID-19

Washington — OSHA on April 26 submitted for review to the White House Office of Information and Regulatory Affairs a draft of an emergency temporary standard related to COVID-19 – one of the final steps before the ETS can be published in the Federal Register.

OIRA reviews typically last at least a couple of weeks, but the timeline for this ETS is unclear. The agency hasn’t issued an ETS since November 1983, and that one (related to asbestos) was invalidated by the U.S Court of Appeals for the 5th Circuit about four months later.

After publication of the ETS, OSHA would begin working on a permanent standard that would go into effect within six months.

President Joe Biden on Jan. 21 signed an Executive Order that directed OSHA to consider an ETS related to COVID-19 and, if considered necessary, issue it by March 15. That deadline passed with no perceivable movement on the ETS.

The House Workforce Protections Subcommittee has scheduled a hearing for April 30 to check on the status of the pending ETS. Labor Secretary Marty Walsh is slated to appear before the House Appropriations Committee’s Labor, Health and Human Services, Education, and Related Agencies Subcommittee on April 28, and likely will field questions about the ETS.

In a letter sent to the president April 26, three Michigan Democrats – Reps. Debbie Dingell, Andy Levin and Rashida Tlaib – call on OSHA to issue the ETS amid sharp increases in new COVID-19 cases, hospitalizations and deaths in their state.

Likewise, labor unions and other groups in recent weeks have called on the agency to publish its ETS.

“We’re grateful for the Department of Labor’s work in getting the standard to this point, and we urge swift issuance of the rule,” AFL-CIO President Richard Trumka writes in a statement released April 26. “Strong enforceable standards that require employers to develop workplace COVID-19 safety plans, implement science-based protection measures, train workers and report outbreaks are necessary for reducing infections and deaths, and beating this virus.”

In a Feb. 25 letter sent to former acting Labor Secretary Al Stewart, Reps. Virginia Foxx (R-NC), ranking member of the Education and Labor Committee, and Fred Keller (R-PA), ranking member of the Workforce Protections Subcommittee, called on OSHA to convene a Small Business Regulatory Enforcement Fairness Act panel to gather input from small businesses before proceeding on an ETS.

The lawmakers voiced their concerns that an ETS “would mandate actions based on a snapshot in time for a disease and public health guidance that is constantly evolving.” They pointed to California’s COVID-19 ETS that went into effect in December as “a real-world example.” According to the letter, Gov. Gavin Newsom (D) had to issue an Executive Order to suspend the ETS because it “conflicted with changes in Centers for Disease Control and Prevention and California Department of Public Health guidelines concerning the duration of quarantine periods for essential workers, causing massive confusion for employers during the busy holiday season.”

In the letter, Foxx and Keller strongly urged OSHA “to consider the real-world experiences of employers and their employees, experiences of OSHA State Plans, the evolving nature of the disease and associated public health guidance, and the promising deployment of new vaccines before rushing to enact sweeping new mandates that may create unsound policy with no improvement to workplace safety.”