Nominee to head OSHA pressed on ETS for COVID-19 during Senate hearing

Washington — OSHA’s potential emergency temporary standard on COVID-19 and a similar ETS issued in November by the California Division of Occupational Safety and Health, also known as Cal/OSHA, were – as expected – the major topics discussed during Doug Parker’s confirmation hearing May 27 before the Senate Health, Education, Labor and Pensions Committee.

Parker, head of Cal/OSHA since September 2019 and President Joe Biden’s nominee for OSHA’s assistant labor secretary, attempted to defend and clarify the state’s ETS by noting that California first offered guidance and compliance assistance to employers. He also noted Cal/OSHA’s work with stakeholders.

Sen. Richard Burr (R-NC), ranking member of the committee, asked Parker, “Why issue a standard that becomes rigid and unchanging when the science … is constantly evolving and being updated regularly?” Burr then asked Parker if he regrets that his agency issued the ETS.

“I don’t regret what we did, senator,” Parker replied, “because I believe it saved lives in California and did contribute to the improvement in the situation from being one of the hardest hit states to one of the states with the lowest rates.”

Addressing a question from Sen. Roger Marshall (R-KS), Parker noted that Cal/OSHA has “scaled back significant elements” of the ETS ahead of a planned reauthorization “to reflect the evolving science to take into account issues like the availability of vaccines, which wasn’t the case when we initially issued our [ETS] back in November.”

Marshall also asked if the potential ETS from OSHA would clear the legal bar of COVID-19 being a “grave danger” to workers.

Parker replied: “I believe that if federal OSHA were to issue an [ETS], they would be able to satisfy that legal standard based on precedent. I’m not an expert on that precedent, but I think they could meet that legal standard.”

He later added that unvaccinated workers are in a precarious position.

“When you look at, and we’ve made tremendous progress, don’t get me wrong, the fatality and infection rate among those who are not vaccinated, those haven’t improved over the last several months,” Parker said. “There are still a substantial number of people in society and in the workforce who have yet to get a vaccine. … I just believe we need to finish the fight.”

As required, a draft of the ETS from OSHA has been under review by the White House Office of Information and Regulatory Affairs since April 26. In January, Biden signed an Executive Order that directed the agency to consider an ETS on COVID-19 and, if considered necessary, issue it by March 15.

Parker’s nomination will go up for a HELP Committee vote at a date yet to be determined. Biden announced his intent to nominate Parker on April 9 and sent the nomination to the Senate three days later. Parker was a member of the president’s transition team, focusing on OSH issues.

Before heading Cal/OSHA, Parker was the executive director of Worksafe – a legal services provider in Oakland, CA. He previously served as deputy assistant secretary of policy and a senior policy advisor at the Mine Safety and Health Administration during the Obama administration, and was a partner at the Mooney, Green, Saindon, Murphy and Welch law firm in Washington. In addition, he served as a staff attorney for the United Mine Workers of America.

OSHA is in its longest period in its 50-year history without a Senate-confirmed leader, or assistant labor secretary, dating to David Michaels’ departure in January 2017. Former President Donald Trump nominated Scott Mugno for the post in October 2017, but Mugno withdrew from consideration in May 2019 after waiting 19 months for Senate confirmation.