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Release of OSHA Virus Safety Rule Stalled as Details Ironed Out

March 15, 2021, 8:45 PM

The federal government’s workplace safety agency has drafted its first rule to protect workers against contracting Covid-19 on the job, but whether and when it would be released was unclear Monday afternoon.

Last week, ahead of the March 15 deadline President Joe Biden set for an emergency temporary standard, U.S. Labor Department officials informed multiple business groups that its Occupational Safety and Health Administration had decided to issue a rule, which would set new infection prevention requirements for employers, said three sources familiar with the process.

DOL also told the groups the standard was to have been submitted to the White House Office of Information and Regulatory Affairs on March 12 and then undergo a two-week review before it could be published and take effect, the sources added. But as of Monday afternoon, transmission of the rule wasn’t reflected on OIRA’s public-facing website or otherwise announced, and two spokespeople for the administration said the agency will need additional time.

“This is no longer a guessing game—yes, they’re doing one. And the only question now is when will it be made public,” Marc Freedman, vice president of employment policy at the U.S. Chamber of Commerce, said in a phone interview Monday.

OSHA officials called the Chamber on March 12 to relay the news that a decision had been made to issue a rule, Freedman said. Neither he nor sources at other business groups apprised of the agency’s plans knew the reason behind the apparent delay in submitting it to the White House regulatory office.

Biden said in a Jan. 21 executive order that he wanted the OSHA measure issued by March 15, if the agency first decided one was necessary. That meant, in practice, that even if the agency did send the rule to OIRA on March 12, a truncated review process would have been needed to meet the administration’s deadline. The DOL hasn’t publicly declared whether an emergency rule is necessary.

DOL representatives declined to explain the delay. The White House and other governmental entities, such as the Centers for Disease Control and Prevention, are likely providing input on what is already a complicated undertaking.

White House Press Secretary Jen Psaki, asked Monday whether an emergency rule could hurt businesses struggling during the pandemic, said Biden’s objective is to protect workers. She said the administration is waiting for OSHA to conclude its process, adding that the agency “should have the time to get it right.”

Standard as a Priority

Issuing a strong workplace standard with strict protections for airborne spread of the virus was a top priority during Biden’s presidential campaign, after the Trump administration refused to issue an OSHA rule, saying existing standards and laws protected workers.

Unions, Democratic lawmakers, and other worker-safety advocates have been urging the Biden administration to quickly produce an emergency standard to address hazards facing workers, particularly in the months before widespread distribution of coronavirus vaccines.

A DOL spokeswoman wouldn’t confirm that OSHA had developed an emergency standard.

“The Occupational Safety and Health Administration has been working diligently, as appropriate, to consider what standards may be necessary, and is taking the time to get this right,” the spokeswoman said by email Monday.

Truncated Process

The Chamber and other business groups have expressed concerns about the potential for an onerous or confusing Covid-19 standard, particularly after many companies have already developed their own workplace safety protocols.

“We were told that it would be at OIRA for two weeks, which is definitely time enough to get a meeting,” said Freedman, referring to the traditional process in which outside stakeholders may request meetings with OIRA to discuss rules before they’re finalized.

Technical provisions of the complex regulation could be behind the delay, such as for proper respiratory protection, physical distancing issues, and how new federal requirements would interact with recent state policies that relaxed mask-wearing mandates.

In past significant rulemakings, OIRA would block an agency from formally submitting a rule until it had addressed problems the White House office had with the rule.

Housed within the White House Office of Management and Budget, OIRA often reviews final rules to determine whether an agency’s reasoning for the regulation is sufficient. Following the office’s approval, a final rule typically is published in the Federal Register and takes effect.

The text of the emergency rule hasn’t been released. It’s expected to require employers to implement Covid-19 infection prevention programs and to treat CDC guidance as a requirement.

Unions and worker advocates also expect the rule to guarantee pay and benefits for workers who miss time at their jobs because they were potentially exposed to Covid-19 or were diagnosed as infected. Without those protections, workers would be discouraged from reporting their illness or exposure, advocates said.

An emergency standard will likely serve as the backbone of a permanent Covid-19 rule, which would be open to public comment and could be adopted by September.

Because the regulation was drafted as an emergency temporary standard, it didn’t undergo the lengthy public review process required for most rulemakings.

—With assistance from Ian Kullgren

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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