Another Status Update about Federal OSHA’s COVID-19 Emergency Rulemaking

By Conn Maciel Carey’s COVID-19 Task Force

It has been nearly a full month since the deadline set by President Biden’s Day-1 OSHA Executive Order for Federal OSHA to determine the necessity of and to issue a COVID-19 Emergency Temporary Standard (ETS), and we are all still waiting for the big news.  OSHA has not issued a final ETS.  The Office of Management and Budget’s (OMB) website has not been updated to reflect that it has received a proposed ETS from OSHA.  OSHA has not even explicitly announced that it will issue a COVID-19 ETS.

According to reports last week from Bloomberg Law, brand new Secretary of Labor Marty Walsh requested a hold on the release of an OSHA ETS, but according to a DOL spokesperson, that “hold” was so that OSHA could make “a rapid update based on the Centers for Disease Control and Prevention analysis and the latest information regarding the state of vaccinations and the variants.”  The sense from that reporting was that OSHA would be quickly updating certain provisions in a near-final draft of the ETS to align with the latest CDC guidance.  No suggestion that an ETS would not be issued.

However, later in the week, Politico reports that Secretary Walsh gave a public interview in which he said this:

That was the first time since President Biden’s Executive Order that we heard anyone at OSHA or the Department of Labor imply that a COVID-19 ETS may not happen, and it conflicts directly with numerous other representations from DOL and OSHA officials implying that it was a matter of when, not if, OSHA would issue a COVID-19 ETS.  For example, at this year’s ABA OSH Law Subcommittee Midwinter Meeting, just a couple of weeks earlier (March 23-26).  COVID-19 and OSHA’s work on an ETS was a hot topic discussed throughout the conference.  During a panel discussion on “OSHA in the New Administration: Key Issues Going Forward,” Chip Hughes, the Deputy Assistant Secretary for Pandemic and Emergency Response, shared the following:

  • OSHA is making updates to its guidance based on where the new Administration is going, where the National Emphasis Program (NEP) is, and where the ETS hopefully will be soon.
  • In answering a question about the status of the ETS, Mr. Hughes stated that there is still a process going on in terms of development of a proposal to be shared with other federal agencies, and as Julie Su said in her testimony to Senate last week, “it’s imminent.” That would again start a process within the federal government for other agencies to comment on OSHA’s proposal.  It is an ongoing process and OSHA hopes it will “move to next level very soon.”  He indicated that part of the timing was making sure that the new Secretary of Labor [Marty Walsh] was onboard and could have input in the rule.  He will be part of that process also.
  • Hughes stated that OSHA thinks it is still important to do an ETS and continue COVID protections because it knows that we are not at a place where Mr. Hughes’ ex-partner Dr. Fauci would say, “we’re all good.”

The main takeaway was that, although there is still some process going on in terms of fine-tuning a draft ETS to be shared with other federal agencies (OMB, presumably), issuing a rule is “imminent.”

Now we can add in one other very significant development into the analysis about what OSHA is likely to do on the ETS front.  Last Friday, April 9th, the White House announced Pres. Biden’s intent to nominate Doug Parker for Assistant Secretary of Labor for OSHA – the top job at Federal OSHA. Doug Parker is the Chief of California’s Division of Occupational Safety and Health (Cal/OSHA).  As the Head of Cal/OSHA, Parker oversaw the development and roll-out of California’s emergency COVID-19 workplace regulation.  That model of a COVID-19 ETS has been a matter of great consternation for California employers.

Parker has also been a part of President Biden’s Labor “transition team” even before the inauguration.  So, he has likely had a role in OSHA’s COVID-19 emergency rulemaking to this point.  His nomination to lead federal OSHA also likely increases the weight his opinion will be given in whether to issue an ETS, and what the ETS should look like.  And we have a pretty good sense of what his opinion is about that, given his role in pushing out Cal/OSHA’s ETS.  This is another factor making it much more likely that Fed OSHA does issue an ETS, and perhaps more likely that it incorporates more of the onerous provisions in the Cal/OSHA ETS that we have covered in detail in prior blog articles.

The increased vaccination rate is obviously affecting DOL’s decision about an ETS, as it should, but a potential fourth wave will likely push OSHA the other direction – to still issue an ETS very soon.  But every day that passes without the big ETS news, more American workers get vaccinated, and we learn more about the effectiveness of the vaccines (e.g., infections and spread of the virus by vaccinated people is even less likely than we thought just a few weeks ago), all of which weakens OSHA’s justification for an emergency standard.

All things considered, however, we still believe it is a matter of when, not if, OSHA will deliver a complete ETS to OMB for approval.

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