Update on the Timeline for OSHA to Finalize the Permanent COVID Rule for Healthcare

It’s been a while since our last update about OSHA’s rulemaking for the permanent COVID-19 rule for healthcare, which is very good news.  It was always a possibility that by the time OSHA got around to finalizing and issuing its permanent COVID-19 regulation that the pandemic would be in such a state that it would not make any practical, health, or political sense to actually issue the rule.  But that does not appear to be OSHA’s thinking right now, or the thinking of the DC Circuit and the nurses unions that continue to push OSHA to finalize the rule.

According to a sworn statement by Assistant Secretary of Labor for OSHA Doug Parker on July 25, 2022, OSHA remains “on track” to complete its long-term COVID-19 safety healthcare standard in September to October of 2022.  This is consistent with OSHA’s January 2022 statement that it intended to develop a permanent COVID-19 standard for healthcare workers within six to nine months.

Assistant Secretary Parker’s statement appears to be a reaction to inconsistent testimony from Secretary of Labor Marty Walsh before the Senate Appropriations Committee on June 15, 2022.  There, Secretary Walsh testified that OSHA would finalize the standard in three to six months, which sounded like a shift in OSHA’s target issuance date to later in the year or even next year.  Continue reading

The Employers E-Recordkeeping Coalition Submits Comprehensive Written Comments to OSHA’s E-Recordkeeping Rulemaking Docket

By Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice

On March 30th, OSHA published a new proposed rule to amend and dramatically expand the requirements of its “Improve Tracking of Workplace Injuries and Illnesses Rule” (aka, the E-Recordkeeping Rule).  We digested the tortured history of OSHA’s E-Recordkeeping Rule, the proposed amendments OSHA introduced this Spring, and the implications of the proposed changes in this article.

Conn Maciel Carey’s OSHA Team organized a flat fee-based E-Recordkeeping Rulemaking Coalition of employers and trade groups to collaborate to submit public comments on this proposal and otherwise participate in the rulemaking process to advocate for the most manageable possible E-Recordkeeping Rule.  The first major step taken by our Employers E-Recordkeeping Coalition was to submit a comprehensive set of written comments to OSHA’s rulemaking record on June 30th.  Here is a copy of our as-filed comments.

To summarize, we addressed in the comments that: Continue reading

Fed OSHA’s COVID-19 Emergency Temporary Standards Officially Submitted to OMB for Final Approval

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 Continue reading

OSHA Takes A Big Step Towards Issuing a COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

As we continue our marathon COVID-19 ETS watch, some news today made the future of OSHA’s emergency rulemaking more clear.  OSHA has officially delivered a proposed COVID-19 emergency temporary standard to the White House’s Office of Management Budget today, Monday, April 26th.  Although the OMB website is still not showing a record of the rule, the Department of Labor issued this statement:

“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.”

We had circled this Wednesday, April 28th, on our calendar as the likely day OSHA would officially announce it was going to issue an ETS because that is Workers Memorial Day, and that seemed to be a good symbolic occasion 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: Continue reading

Status Update About OSHA’s Emergency COVID-19 Rulemaking

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 Continue reading

EPA Sends Final RMP Rollback Rule to OMB for Review

By Micah Smith, Eric J. Conn and Beeta Lashkari

Last week, on September 12, 2019, EPA sent its Final RMP Rollback Rule to the White House Office of Management & Budget (OMB) for pre-publication review.  The rule is expected to roll back many of the Obama-era RMP Amendment Rule that added to and enhanced numerous RMP requirements, which was finalized and published in the Federal Register three days before President Trump’s Inauguration.  

This new near-final RMP Rollback Rule comes after a long and tortured rulemaking and litigation history in which President Obama’s EPA rushed out the RMP Amendments Rule, President Trump’s EPA attempted to delay the RMP Amendments Rule, those attempts were defeated in federal court, and then EPA quickly finalized the current rulemaking with anticipated roll-backs.  Here is a quick summary of that history: Continue reading

OSHA Unveils Controversial Final Silica Rule and Industry Gears Up For Challenges

By Kate M. McMahon and Eric J. Conn

OSHA has issued its long-sought – and heavily disputed – new regulation aimed at reducing worker exposures to crystalline silica dust, cutting the Permissible Exposure Limit (PEL) in half for general industry, construction and maritime activities.

Office of Management and Budget (OMB) officials on March 21, 2016 cleared the rule, essentially green lighting  OSHA to move forward. With this regulation long represented as a top priority for OSHA, Assistant Secretary of Labor David Michaels took no time doing so, issuing the final rule only days after Silica Rule Image 2the White House gatekeeper OMB cleared it back to OSHA. Dr. Michaels said in the press release accompanying the rule that the existing limits on Silica dust are “outdated,” and added that limiting exposure to silica dust is essential.

“Every year, many exposed workers not only lose their ability to work, but also to breathe. Today, we are taking action to bring worker protections into the 21st century in ways that are feasible and economical for employers to implement.”

The soon-to-be-published final rule – effective 90 days from its imminent publication in the Federal Register – cuts the exposure limit on respirable crystalline silica in half for general industry, construction and maritime,Silica Rule Image making the new PEL 50 micrograms per cubic meter (50 µg/m³) of air, on a time-weighted average of exposure across the work day. The PEL, which is the core provision of the rule, was controversial enough considering the little return Industry sees from the reduction, as compared to the economic and technical difficulties involved. However, the new regulation also includes an “action level,” set at 25 µg/m³, which automatically triggers numerous ancillary requirements ranging from exposure controls to medical surveillance. OSHA justifies this action level because many workplace health experts believe that Continue reading

OSHA Withdraws Long-Planned Rule To Reduce Slips, Trips And Falls

By Eric J. Conn and Kathryn M. McMahon

In what can only be viewed as another example of OSHA’s inability to effectively advance its rulemaking agenda, OSHA recently withdrew from the Office of Management and Budget (OMB) review of its quarter-century-in-the-making draft Final Rule to update existing regulations aimed at preventing slips, trips and falls in the workplace. OMB’s Office of Information and Regulatory Affairs (OIRA), the White House WWS Rule Withdrawalgatekeeper for rules with significant economic impact, reported in late December that OSHA withdrew the rule from OIRA pending further consideration by the Agency. Unless a swift turnabout occurs and the rule is resubmitted to OIRA in the very near term, the rule will not be promulgated before the end of the Obama Administration.

The Walking-Working Surfaces and Personal Fall Protection Systems rule proposal, colloquially referred to as the “slips, trips and falls rule” proposal, was first issued in 1990. That is not a typo. The proposal has languished at OSHA for more than twenty-five years. Eventually, based at least in part on public comments submitted in response to the 1990 proposal, OSHA published a notice to reopen the rulemaking for a second round of public comment in May 2003. However, because advancements in fall protection technology had far outpaced OSHA’s rulemaking process, the Agency concluded that:

“the existing proposal was out of date and did not reflect current industry practice or technology.”

So more delays.

In May of 2010, OSHA issued a reiteration of the proposal, which, according to Agency officials, “reflected current information and increased consistency” with other OSHA standards. OSHA held administrative hearings in January of 2011 on the revised proposal, and this time, seemed as if it was actually making headway and would get the rule across the finish line. Continue reading