OSHA may soon adopt a COVID-19 regulation
Date Posted: 02/15/2021
OSHA recently issued stronger guidance on COVID-19 and may soon issue a regulation. On January 29, OSHA delivered a webcast which said the agency expects to issue an emergency temporary standard (ETS) on COVID-19 as early as March 15, 2021. The ETS could then be made permanent.
The scope of an emergency COVID-19 standard remains unknown, but it would likely adopt many of the guidance recommendations. Before publishing an ETS, OSHA plans to reach out to employers and stakeholders for feedback through virtual meetings and online comments. After publication, OSHA will likely make enforcement of that standard a priority.
OSHA started considering an infectious disease standard in 2010, but has taken no action since 2014. That rulemaking item appears in OSHA’s regulatory agenda. While the focus is on health care workers, it may also cover “other occupational settings where employees can be at increased risk of exposure.” Information gathered to develop that standard could become part of a COVID-19 standard.
What else may be coming?
President Biden’s National Strategy for the COVID-19 Response and Pandemic Preparedness directs OSHA to update guidance on COVID-19. Despite using the word “guidance,” this likely supports a new standard as well. Several state-plan-states have already taken action. Virginia was the first to adopt an ETS, and already adopted it as a permanent standard. California, Michigan, and Oregon also have ETSs which will likely become permanent. Note that state plan standards must be at least equivalent to federal standards.
In addition, the strategy document says the Biden administration “is taking steps to cover workers not typically covered by OSHA or MSHA by directing agencies like the Department of Transportation to keep workers safe.” Details were not provided, however.
Finally, according to the strategy document, President Biden called on Congress to “allow OSHA to issue standards covering a broad set of workers, like many public workers on the frontlines” and to “provide additional funding for worker health and safety enforcement.” Requesting additional funding for OSHA is not unusual. However, federal OSHA covers only private employees; an expansion to cover government employees would require an act of Congress.
How emergency standards work
OSHA can create an ETS that takes effect immediately until a permanent standard is adopted. OSHA must determine that workers are in grave danger, and that an ETS is needed to protect them. When the ETS gets published in the Federal Register, it also serves as a proposed permanent standard, subject to the usual procedure for adoption, except that a final ruling should be made within six months. The validity of an ETS may also be challenged in court.
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