By Eric J. Conn
We are sure many of you have been on the edge of your seat waiting for news about OSHA’s COVID-19 emergency temporary standard, which was expected to be issued by next Monday, March 15th per Pres. Biden’s Day-1 OSHA Executive Order (EO). So that you might be able to enjoy your weekend, we wanted to share with you the latest we are hearing about the status of the emergency rulemaking.
Status of Rulemaking
As we expected, the process OSHA is following (an emergency rulemaking with some time pressure set by Pres. Biden) does not include an opportunity for a formal pre-rule public notice-and-comment period. Nevertheless, the rule still needs to go to the White House’s Office of Management and Budget (OMB) for approval before it is issued and can go into effect. That likely means that the Office of Information and Regulatory Affairs (OIRA) within OMB will provide for stakeholder input in some form pursuant to Executive Order 12866. As of now, OMB’s website still does not reflect a docket entry for OSHA’s COVID-19 ETS, and we have not otherwise heard or seen anything that would indicate the proposed rule has been delivered to OMB. To monitor that, here is a link to OMB’s page about regulations under EO 12866 review — scroll down to the Department of Labor section of rules.
We also have started to hear through the rumor-mill that OSHA understand the Executive Order to require only that OSHA make the determination that a COVID-19 ETS is necessary, and if possible, also to finalize drafting the rule and deliver it to OMB for review by the March 15th date referenced in the EO. At that point, we would not anticipate that OMB would immediately rubber stamp an approval of the ETS. Technically, OMB has 90 days to review and approve the rule, or to return it to OSHA for more work. but that timeline is non-binding and in practice the process can take less than a week for some rules, or many months for others. Since it is an emergency rule, and we presume OSHA has coordinated with OMB to some extent throughout the drafting process, we do not expect OMB will take the more than two or three weeks for its review. But we do anticipate the rule will be at OMB for enough time for the agency to give some real consideration to stakeholder input, even if that is without a preview of the actual regulatory text.
Based on the fact that the ETS has not been delivered to OMB yet, and OMB will give it consideration, we anticipate April 1st is a more realistic target date for when to expect to see OSHA issue a final COVID-19 ETS issued.
Advocacy by the Employers COVID-19 Prevention Coalition
In the meantime, even though there has been no official rulemaking docket opened by OSHA or OMB, to make sure that industry’s voice is heard in this rulemaking process, the coalition of employers and trade groups organized by Conn Maciel Carey — the Employers COVID-19 Prevention Coalition — has been working hard to make sure industry’s voice is heard in this emergency rulemaking process. First, last month, we participated in a “Listening Session” hosted by leadership at OSHA and the Department of Labor to share our coalition’s top 5 priorities about the rule.
Then, at the beginning of March, we submitted a comprehensive set of written comments to OSHA and OMB. We have not seen regulatory text yet, so the comments were essentially recommendations about provisions that we anticipate OSHA is likely considering for the ETS.
Finally, on behalf of our coalition, Conn Maciel Carey is evaluating engagement with OMB if there is an opportunity to discuss our recommendations about an effective and manageable rule.
Regardless of what happens pre-rule, we also offered to OSHA a recommendation in our written comments — that OSHA at least consider opening a rulemaking docket for post-rule comments, with the potential for amendments to the ETS based on stakeholder feedback then. That is similar to the approach Cal/OSHA has followed with its COVID-19 ETS – enact a rule to meet the urgency, but then take some time to fix problematic elements of the Rule while it is in effect and enforceable. If that happens with the Fed OSHA Rule, stakeholders will get at least one bite at the apple after seeing actual regulatory text.