Shortly after President Biden took office, he signed an Executive Order directing OSHA to, among other things, determine whether emergency temporary standards (ETS) on COVID-19 are necessary; and if so, to issue them by March 15, 2021. Former Secretary of Labor Eugene Scalia repeatedly stated an ETS was not necessary and OSHA’s general duty clause provided OSHA with the necessary enforcement tool to address COVID-19 in the workplace.
As the March 15 deadline quickly approaches, it seems most OSHA practitioners believe OSHA will issue an ETS, particularly given President Biden’s historically close relationships with unions, which have been outspoken critics of OSHA’s handling of COVID during the Trump administration.
A recent report issued by the U.S. Labor Department’s inspector general on February 25, 2021, finding that “OSHA has not been providing the level of protection that workers need at various job sites” most likely increases OSHA’s chances of issuing an ETS. The report further noted a decline in OSHA inspections while complaints increased and an absence of a program focusing on high-hazard workplaces, which OSHA has done in the past.
A copy of the report can be found here.
On the other hand, business advocates groups, including trade associations, have advocated that OSHA issue a Notice of Proposed Rulemaking instead of an ETS. Such groups have argued that doing so would ensure that OSHA sufficiently reviews and considers necessary information and input from the regulated community in all industry sectors. They note the only way this can be properly accomplished is through the notice and comment rulemaking process under the Administrative Procedures Act.
As discussed in an earlier blog found here, recent OSHA COVID guidance most likely provides a window into what an ETS might look like.
We will all soon learn what OSHA will do, but Vegas odds would probably favor issuance of an ETS, and as such, it would be prudent for businesses to review the revised guidance and to keep an eye on the March 15 deadline.