The one question on everyone’s mind is when, if ever, will employers learn whether OSHA will actually issue the COVID-19 Emergency Temporary Standard (“ETS”) that OSHA delivered to the White House’s Office of Management and Budget’s (“OMB”) Office of Information and Regulatory Affairs (“OIRA”) at some point in late April or early May to the general public. OIRA is required to engage in regulatory oversight under Executive Order 12866 and, as part of that oversight, has been conducting “listening sessions/meetings” with stakeholders. Many of us anticipated that we would have seen these meetings conducted and completed now, given this action’s “emergency” nature.
OIRA Listening Sessions
At this point, OIRA has conducted over 40 meetings with stakeholders concerning the ETS, which no one outside of the federal government has ever seen. I attended, by telephone, one such meeting/listening session with OIRA on May 24 accompanied by, and on behalf of, a coalition of seven large employers who employ hundreds of thousands of employees in every state. Participants on behalf of the federal government who attended my meeting included representatives from OMB, OSHA, the Department of Labor’s Solicitors Office, and the Small Business Administration’s Office of Advocacy. As expected, the representatives from OSHA and the Solicitors office were not forthcoming about what is in the ETS or what we all should anticipate happening regarding the long-awaited regulation. Instead, they listened politely to the information we presented and the argument that the facts needed to support this emergency standard no longer exist.
An Emergency No Longer Exists
There is little doubt that most stakeholders that have to meet with OIRA these past two weeks have argued, as we did, that since the virus has stopped spreading (as evidenced by fewer and fewer new cases reported every day). Data shows that more than half of individuals over 18 in the US have received a vaccination shot. That is no longer a situation justifying emergency action.
Despite this argument, OSHA has not indicated in any way to date that it no longer intends to issue a COVID-19 ETS. On the contrary, OSHA’s possibility of an ETS being issued is still very real even though their attorneys within the Solicitor of Labor’s office must recognize that an ETS has a feeble chance of surviving the judicial challenge. No court is likely to find that a “grave danger” currently exists as required by the statute to issue an emergency standard. Unfortunately, I am beginning to think that fact may not matter to the DOL.
There is a strong possibility that an ETS is coming
As a result of political pressure, there is a very good possibility that OSHA will issue an ETS that the Solicitor’s Office knows will be shot down by the courts. At this stage, it is hard to imagine the DOL ignoring the dozens of labor unions and other organizations that have been pushing the White House so hard to issue an “urgent proposal to protect American workers,” including former Assistant Secretary David Michaels. The fact that such an action at this point would be an enormous waste of resources by the DOL, unfortunately, demonstrates that the issuance of an ETS is not going to be a policy-driven action but rather a purely political response to pressure from one group of stakeholders that influence the Biden administration
What Might This ETS Look Like?
While many have speculated that the ETS could be patterned after the California OSHA (Cal/OSHA) temporary standard, we think that we may see a standard that contains much less in the way of burdensome obligations on employers than what the Cal/OSHA standard currently imposes. While the somewhat surprising May 13 CDC guidance may have stolen some of OSHA’s “thunder,” so to speak about social distancing, masking, and quarantine requirements for fully-vaccinated employees, an ETS from OSHA may still contain provisions requiring a:
- Medical exclusion from work for infected employees (with or without pay or benefits and accompanying employer tax credits);
- Masking and social distancing for employees who are not fully vaccinated (including specifications on the types of face coverings acceptable to specific environments);
- Health screening for employees who are not fully vaccinated;
- Contact tracing concerning infected employees;
- Workplace “outbreak” provisions requiring notifications to OSHA and other public health departments;
- Written COVID-19 prevention program with a specifically assigned program “coordinator;”
- Use of respirators by employees working with known or suspected infected patients (e.g., health care employees);
- For employers with employees working in areas of a high risk of exposure, a written PPE supply and crisis management plan.
Different Requirements for Different Levels of Exposure, i.e., Healthcare and Corrections
Because of the May 13 CDC guidance specifically excluding healthcare facilities and correctional facilities, that could be a possible indication that OSHA’s ETS may require employers to assess their workplace for virus exposure by classifying each job task their employees perform into various categories of exposure such as: low, medium, high and very high (similar to the four categories in the Virginia OSHA standard). By doing so, OSHA might issue a regulation that essentially imposes different and ultimately more stringent requirements on employers in those two industries without attempting to issue a workplace standard limited to a specific industry.
Healthcare industry employers have constituted many employers cited by OSHA to date for COVID-19 violations. We expect any ETS that is issued will most likely address the exposure risks and hazards faced by employees in that industry.
While what may or may not be included in a COVID-19 ETS that is finally revealed by OSHA sometime soon is based on educated guesswork at this point, we will stay on top of every development as it occurs over the next few days and weeks and keep you informed as soon as we hear anything new from either the White House or the DOL.