Although the Occupational Safety and Health Administration (OSHA) has launched a major COVID-19 enforcement program aimed at employers in high-risk industries, it has yet to publish the Emergency Temporary Standards (ETS) regulations President Biden had ordered it to issue no later than mid-March.
It appears that the standards have been held up either by OSHA’s ultimate boss in the Department of Labor (DOL), Secretary Marty Walsh, or by White House staffers concerned about whether the content will stand up to legal scrutiny and political heat. Why this turned out to be the case has inspired growing speculation by agency observers.
On Jan. 21, President Biden issued an executive order directing OSHA by the end of January to come up with a new and extensive 6,000-word COVID-19 guidance document for employers—which it did—as well as the ETS regulations by March 15, which it developed but has yet to be published.
OSHA hasn’t been resting on its laurels, though. On March 12, the agency announced a new National Emphasis Program (NEP) for COVID-19 enforcement action that targets employers in what it considers to be higher hazard industries. The NEP, which went into effect immediately, mandates that 5% of each OSHA region’s total inspections must be related to COVID-19. Across the agency, this is expected to amount to about 1,600 total inspections.
At the same time that it announced the new NEP, the agency also updated and replaced its former interim COVID-19 Enforcement Response Plan (ERP) for in-person worksite inspections. The ERP directs Area Directors and Compliance Safety and Health Officers (CSHOs) to prioritize inspections involving deaths or multiple hospitalizations due to occupational exposures involving the disease.
OSHA also strongly encouraged the 28 states and territories with state plans in place to also adopt the NEP. States such as California, Michigan, Oregon and Washington State already have their own ETS, and Virginia made its ETS permanent.
On March 26 OSHA launched the initial stage of its ERP effort, targeting healthcare employers initially, promising that not far behind will be stepped-up inspections of meat processing and other manufacturing facilities, along with warehousing operations.
So, why has there been a hold up in issuing the federal OSHA ETS rules? According to Jackson Lewis attorney Courtney Malveaux, labor unions and progressive organizations indicated they expect the ETS to guarantee pay and benefits to workers who need to take leave because of potential COVID-19 exposures or diagnoses. However, employer pay and leave practices are normally left to OSHA’s sister agency, DOL’s Wage and Hour Division.
ETS No Longer Needed?
John S. Ho, an attorney with the law firm of Cozen O'Connor, thinks there may be another reason why Secretary Walsh has chosen to hold back on publishing the ETS—the emergency it is intended to address no longer exists.
Walsh has said the ETS is being suspended because the proposed standard did not “reflect the latest scientific analysis of the state of the disease.” Ho’s analysis of this statement is: “The focus on the state of the disease suggests Secretary Walsh and his team at OSHA realize that there is no longer an emergency due to the rate of vaccinations throughout the country, and many of the U.S. population will be vaccinated in a matter of months.”
Ho believes that this particular eventuality presents a significant roadblock for OSHA because the Occupational Safety and Health Act does not permit the agency to issue an emergency standard unless the hazard the standard addresses poses a “grave danger” when it is issued.
“Another likely and significant reason that the ETS has been placed on hold is that OSHA struggles to demonstrate that the benefits the ETS is supposed to achieve are justified, given the significant costs to employers in complying with the requirements of such a new rule,” Ho explains. (Among these costs would be the requirement that employers continue to pay salaries nd benefits for workers who are quarantined, something already mandated in California.)
Gabrielle Sigel, an attorney with the law firm of Jenner & Block, also believes there is considerable legal risk that a COVID-19 ETS issued by OSHA will not hold up in court. OSHA has not successfully issued an ETS since 1978, she observes. Its last attempt would have regulated asbestos exposure and that ETS was invalidated by a federal appeals court in 1984.
Another problem is that the very advocates for an ETS the Biden Administration aimed to indulge—the nation’s most powerful labor unions—may have shot themselves in the foot last year when they sued Trump’s OSHA for not issuing the ETS they had demanded. That lawsuit ended when federal appeals court judges ruled that OSHA reasonably determined that an ETS was not necessary.
Ho says that although an ETS may have stalled out, OSHA could very well shift to a proposal for a permanent “Infectious Disease” standard. Such a standard would govern all infectious diseases, such as tuberculosis, influenza and MRSA. In 2014, OSHA opened a rulemaking under the Obama Administration, which three years later was placed in a category that DOL calls “long-term action.”
Sigel believes that DOL also could choose to issue a more limited ETS, such as one similar to California’s transmissible diseases standard that would apply only to the healthcare industry, or by confining the ETS to face mask requirements, for example.
Another possibility, she suggests, is that OSHA may issue a more comprehensive regulation that only targets high hazard industries, such as healthcare, congregate living facilities, meat processing plants, and/or manufacturing facilities, such as it just did in the COVID-19 NEP. That more comprehensive ETS could contain many of the same recommendations that were included in the agency’s 6,000-word guidance document OSHA issued on Jan. 29.
Of course, DOL could simply decide that OSHA should go back to the drawing board and try again. “There is growing speculation now that OSHA, under Secretary Walsh’s direction, will use the current standard COVID-19 pandemic as a reason to reinstate that process again with the hope of finally getting such a standard issued,” Ho says.