Background

In his first day in office, President Biden issued an Executive Order (“EO”) that directed Fed OSHA to revisit its strategy for regulating and enforcing workplace spread of COVID-19.  Among other actions, the EO directed OSHA to consider whether a federal COVID-19 emergency temporary standard (“ETS”) is necessary.  We believe it is a foregone conclusion OSHA will issue an ETS.  The lack of an explicit mandate to do so is likely more a formality than a real open question; i.e., the President prefers the appearance that the workplace safety experts at OSHA made the decision, but the White House has made clear what it expects.

Assuming OSHA determines an ETS is needed, the EO sets a March 15^th deadline for OSHA to finalize and issue the rule, so OSHA is surely already working intensely on a COVID-19 ETS.  Although OSHA has not yet confirmed its intent to develop an ETS, we believe it prudent to begin our advocacy efforts as soon as possible, as there will likely be a small pre-rule window to impact the rule before it issues.

The question remains, though, what will a Fed OSHA COVID-19 ETS look like?  We need look no further than the examples set by the State OSH Plans that already have issued COVID-19 ETSs to see the difference between a manageable, effective rule (see Virginia OSHA’s ETS) and a daunting, sometimes unworkable rule (see Cal/OSHA’s ETS).

VOSH’s COVID ETS (which, with a few adjustments, became a permanent infectious disease rule on Jan. 27^th) is structured as a performance-oriented standard, requiring employers to develop a written Infectious Disease Preparedness and Response Plan and implement basic COVID-19 controls recommended by the CDC, most of which employers were already implementing before the VOSH ETS went into effect in July 2020.  The VOSH rule also builds in a mechanism for employers to adjust with evolving CDC guidance and remain in compliance with the VOSH rule.  The Cal/OSHA ETS, on the other hand, includes numerous burdensome, specific requirements that provide little or no additional benefit from a health perspective, and which have seemingly little basis in science.  For example, several problematic elements, Cal/OSHA sets extremely onerous testing requirements for workplace COVID-19 “outbreaks,” yet defines outbreak in a manner that includes situations with no work-related transmission whatsoever.  Cal/OSHA’s ETS also ventured outside the realm of workplace safety by setting wage and benefit continuation requirements that do not belong in an OSHA standard.  Notwithstanding these and other concerning provisions in the Cal/OSHA ETS, no data indicate that California’s standard has been more effective than VOSH’s in preventing the workplace spread of COVID-19.

Accordingly, it is vital that Fed OSHA forge the right path for its COVID-19 ETS, and that starts with making sure OSHA has the best information from stakeholders in the regulated community about what works best to prevent workplace transmission and what is unworkable.  Because this rule will be developed through an emergency rulemaking, OSHA is not required to follow the Administrative Procedure Act’s pre-rule notice-and-comment requirements, but they are not prohibited from doing so.  During last month’s Small Business Administration OSHA Roundtable, we encouraged OSHA to allow for some formal stakeholder comment period, and regardless, to take every opportunity to hear and consider Industry’s input for this rulemaking.  OSHA leadership committed to do so in some form or another.

Employer’s COVID-19 Prevention Coalition

To that end, we are organizing a coalition of employers and trade associations to advocate for the best possible federal OSHA COVID-19 emergency temporary standard.

As you may know, we have been deeply involved in the Cal/OSHA ETS rulemaking process.  We organized a broad coalition of California and national employers to:

1. 1. evaluate and educate our members about the proposed emergency rule;
   2. submit a formal, substantive request to extend the comment period for the rulemaking to allow the agency time to actually consider stakeholder comments;
   3. prepare a set of comprehensive written comments raising serious concerns about not only the substance of the rule, but also the extremely rushed rulemaking process;
   4. develop an  additional set of comments for California’s Office of Administrative Law – the final gatekeeper for new regulations (like federal OMB);
   5. give testimony at both a pre-rule hearing and a post-rule stakeholder meeting; and
   6. provide regular and frequent status reports and substantive updates to our members about the ETS and related guidance from Cal/OSHA.

Thanks to our Cal/OSHA Coalition’s and other stakeholders’ efforts, we have seen some very positive developments related to the Cal/OSHA ETS, including the issuance of several batches of FAQs by Cal/OSHA attempting to address some of the concerns and recommendations we addressed.  Also because of that work, we have been invited by Cal/OSHA, on behalf of our Coalition, to participate on the Advisory Committee for the ETS, which is the best opportunity to influence change to the rule moving forward.  We have been granted one of only ten industry seats at the table at the Advisory Committee Meetings on February 11, 12, and 16, 2021.

We intend to follow a similar approach to help ensure a Fed OSHA COVID-19 ETS is effective, feasible, and manageable for employers, and help our coalition members understand and comply with the ETS.  We will be coordinating with our coalition members to:

1. 1. keep everyone up-to-date about developments with the rulemaking;
   2. prepare talking points and testify at any “Listening Sessions” or private meetings for our coalition that OSHA hosts;
   3. solicit your input about what works, what does not, what is effective in preventing virus transmission in the workplace, and what we should fight hardest to keep out of the ETS because it adds cost and burden without commensurate protection for workers;
   4. advocate for your interests through a formal notice-and-comment process if that exists, and/or through informal opportunities to engage with decisionmakers at OSHA and OMB;
   5. engage with OSHA as necessary post-issuance to steer guidance or further rulemaking in the right direction; and
   6. educate coalition members about the ETS through regular updates and/or calls and webinars.

Next Steps

Although OSHA has not officially announced it will issue an ETS in response to Pres. Biden’s Day 1 OSHA Executive Order, OSHA has already begun work on a draft COVID rule.  In turn, we are making arrangements for our coalition to get either a private audience with OSHA or an invitation to a group “listening session” with OSHA to share our concerns and recommendations about a proposed COVID rule.  So, we need to start organizing our thoughts to present to OSHA soon.

Accordingly, we have scheduled a brainstorming session with our coalition members (and prospective members) next Tuesday, February 16^th at 4 PM ET.  If your organization has already committed or expressed interest, you will get an invite to Tuesday’s conference.  If we have not already connected, let me know if your organization is considering joining and that you would like an invitation for next week’s session.

If you are interested in participating in the coalition, please let us know soon.  With OSHA targeting a final rule by March 15^th, we want to ensure as much time as possible to hear your input and get your feedback about any talking points or written comments we prepare.

Let me know if you have any questions or if you would like to have a call to talk through our plans and strategy for the rulemaking, and the other value-add benefits of participating with our group, including status reports and education sessions.

Eric J. Conn
Chair of Conn Maciel Carey’s national OSHA • Workplace Safety Practice
617.256.8666
econn@connmaciel.com

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For resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts.  Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.