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OSHA Covid-19 Rule for Health Care to Be Released Thursday (3)

June 9, 2021, 4:21 PM; Updated: June 9, 2021, 11:10 PM

OSHA’s emergency rule to protect workers from Covid-19 infection will center on the health-care industry and be released by midday Thursday, U.S. Labor Secretary Marty Walsh said Wednesday.

The Occupational Safety and Health Administration will also issue voluntary guidelines for industries other than health care, Walsh told the House Committee on Education and Labor during an oversight hearing.

“Science tells us that health-care workers—particularly those who have come into regular contact with people who are either suspected of having or being treated for Covid-19—are most at risk,” Walsh said.

Walsh acknowledged that the government’s vaccination program and the Centers for Disease Control and Prevention’s latest guidance have “changed the nature of the pandemic,” prompting the decision to refrain from issuing a rule that would have placed mandates on companies across the economy.

“OSHA has tailored a rule that reflects the reality on the ground,” he said, without providing specific details about what the rule would require of health-care employers.

For employers outside of health care, Walsh said, OSHA will issue advisories that reflect “the CDC’s latest guidance and tell employers how to protect workers who have yet to be vaccinated.”

Labor Secretary Marty Walsh speaks during a White House press briefing April 2.
Photographer: Drew Angerer/Getty Images

Reactions Mixed

Federal OSHA currently doesn’t have a rule that requires employers to take steps to protect workers from airborne spread of pathogens—a reality that worker advocates and Democratic lawmakers have been hounding the agency for months to address.

Labor groups and advocates welcomed requirements for health-care employers to protect workers, but said a broader standard was still needed.

“We know that workers in many industries outside of health care face elevated risks of Covid, especially in low wage industries like meat processing that is disproportionately Black and brown workers,” Deborah Berkowitz, a former OSHA chief of staff and now safety and health program director for the worker-focused National Employment Law Project, said in an email.

During Wednesday’s hearing, labor committee Chairman Bobby Scott (D-Va.) took issue with the rule’s narrowed focus. He submitted a June 2 letter for the record in which he had asked Walsh why the administration was delayed in releasing a regulation, and also had requested documentation of the process.

“There are problems with the standard,” Scott told Walsh during the hearing. “It apparently doesn’t include employees at correctional facilities, homeless shelters, meatpacking plants, or nursing homes. Just health care. We’d like to know, specifically, how we got to where we are, and those documents and questions are proposed in the letter.”

Walsh promised he would respond to the letter, but didn’t commit to providing the documentation that Scott’s missive requested.

House labor Chairman Bobby Scott (D-Va.) speaks during a news conference in June 2020.
Photographer: Al Drago/Bloomberg via Getty Images

President Joe Biden issued an executive order in January that directed OSHA to consider a rule that would require employers to take steps to protect workers from contracting Covid-19 while on the job. The order had set a March 15 deadline for the agency to release a rule if it believed one was necessary.

The agency has said little during its process of drafting the emergency rule under an expedited form of rulemaking. In order to issue an emergency rule, OSHA must show that Covid-19 presents a “grave danger” to workers.

In recent weeks, business groups and Republican lawmakers have stepped up their criticism of OSHA’s rulemaking, arguing that the widespread availability of vaccines and the CDC’s more permissive guidelines for mask use by vaccinated individuals have made an emergency rule unnecessary.

Call for ‘All’

The emergency standard, which Walsh said will be published on OSHA’s website and then the Federal Register, was sent to the White House Office of Information and Regulatory Affairs for final review on April 26.

Walsh had previously held the rule at OSHA for a time to update a related scientific assessment of Covid-19.

The secretary’s statement to the committee Wednesday came shortly after an administration spokesperson told Bloomberg Law that the White House regulatory office had wrapped up its review of the emergency regulation and sent it back to OSHA—in effect, clearing it for release.

Rep. Tim Walberg (R-Mich.) pressed Walsh on the need for an emergency standard in light of the vaccines’ effectiveness.

“If you’re fully vaccinated, you’re protected, and I think we ought to follow the science at some point,” Walberg said, adding, “Let’s let people go back to work and do it in a normal fashion.”

National Nurses United said it supports the rule because it will help health-care workers, but added that it believes stronger workplace pandemic safety measures are needed for all workers, all patients, and all communities, union president and nurse Zenei Triunfo-Cortez said in a written statement.

Marc Freedman, vice president for workplace policy at the U.S. Chamber of Commerce, said he wants to see if OSHA wrote the rule in such a way that it won’t be applicable to other industries and how the agency justified the emergency temporary standard in light of increasing vaccination numbers.

“Issuing an ETS, that has to be based on employees being in ‘grave danger,’ and an ETS being ‘necessary’ is contrary to the great success of the vaccination effort and the widespread movement towards relaxing restrictions and the Biden administration’s projection of normal interactions by July 4th,” Freedman said in an email.

—With assistance from Courtney Rozen and Ben Penn

(Updated with testimony from Rep. Tim Walberg (R-Mich.).)

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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