By Conn Maciel Carey’s COVID-19 Task Force

We have officially entered the phase of Federal OSHA’s emergency rulemaking when things are going to start to move very quickly.  After hitting the “refresh” button more times over the last month than we would like to admit, today we finally saw what we have been expecting since mid-March – Federal OSHA’s COVID-19 Emergency Temporary Standard (“ETS”) has been submitted to the White House’s Office of Management and Budget (“OMB”) for approval:

The entry for the ETS on OMB’s website confirms that OMB:

• Has received a proposed COVID-19 rule from OSHA;
• The rule is in the “Final Rule” stage;
• The rule is characterized as “Economically Significant”; and
• Regulatory text is not available to be reviewed by the public.

The Department of Labor issued this press statement confirming that the rule was sent to OMB:

“Today, OSHA sent draft standards to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review.  OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right.”

Of particular note in this press statement is DOL’s use of the plural “standards.”  We heard an OSHA representative at the ABA OSH Subcommittee Midwinter Meeting mention a possibility that there may be one standard for higher risk industries (e.g., healthcare workplaces) and another standard for all other industries.  That is likely what DOL means there.

Status of Rulemaking

The ETS was expected to be issued by March 15^th  per Pres. Biden’s Day-1 OSHA Executive Order (EO), but OSHA blew past that deadline.  We had circled this week on our calendar as a likely time for OSHA to officially announce it was going to issue an ETS because this Wednesday, April 28th, is Workers Memorial Day, and that seemed to be a good symbolic occasion for OSHA to announce a rule designed to address a pandemic that has claimed so many lives.  Here’s a link to the Dept. of Labor’s Virtual Workers Memorial Day event, and here’s how the event is billed:

Every year, on April 28, the nation recognizes Workers Memorial Day. This is the day we pay our respects to those who lost their lives on the job, and recognize the impact these tragic losses have on families, co-workers, and communities. This year, we also recognize that, more than a year into the pandemic, every day essential workers, many of whom are people of color and immigrants, have put their lives on the line during the COVID-19 pandemic. Many were sickened or died as a result of just going to work – for simply doing what they had to do to support their families. They were healthcare workers, grocery workers, meatpackers, nurses, delivery drivers, farmworkers, law enforcement officers, teachers, and sanitation workers. We remember and honor every worker who has lost their life to largely preventable fatal injuries and illnesses, and we commit ourselves to fighting to make sure that others do not suffer the same terrible fate.

It also happens to be just a couple of days before OSHA will be dragged up to the Hill for an oversight hearing by the House Education and Labor Committee’s Workforce Protections Subcommittee regarding the status of OSHA’s COVID-19 emergency temporary standard.  It seemed likely OSHA would try to cut off the earful it would receive from the House Democrats about the delay in issuing the ETS by making a big announcement earlier in the week.

It turns out our powers of deduction were spot on.  With submission of the ETS to OMB now, the reality of a Federal COVID-19 rule is getting closer, but there is still more bureaucracy left to run its course before the rule is issued.

As we expected, the process OSHA is following (an emergency rulemaking with some time pressure set by Pres. Biden) did not include an opportunity for a formal pre-rule public notice-and-comment period.  Nevertheless, the rule still had to go to OMB for approval before it could be issued and go into effect – and that is what happened yesterday.

The likely next step will be for the Office of Information and Regulatory Affairs (OIRA), within OMB, to provide an opportunity for stakeholder input in some form pursuant to Executive Order 12866.  And then, although OMB technically has 90 days to review and approve the rule or to return it to OSHA for more work, given the ETSs status as an emergency rule, and our presumption that 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.

Advocacy by the Employers COVID-19 Prevention Coalition

On behalf of the Employers COVID-19 Prevention Coalition, a coalition of employers and trade groups organized by Conn Maciel Carey, we have secured an audience with OIRA to provide stakeholder input and recommendations to OSHA and OMB about the proposed ETS, and to try to get a preview of the proposed rule (no guarantees).

The Employers COVID-19 Prevention Coalition has been working hard to make sure industry’s voice is heard in this emergency rulemaking process.  First, in mid-February, 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, as discussed above, on behalf of our coalition, Conn Maciel Carey has secured a stakeholder meeting with OMB 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.

Contact anyone with CMC’s OSHA Practice if your organization is interested in joining the Employers COVID-19 Prevention Coalition.  It is not too late to have a voice in this rulemaking process, and to benefit from the information sharing and advocacy we will be leading throughout the life of the ETS.