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Some House Republicans Call for OSHA Virus Safety Standard (1)

July 15, 2020, 2:52 PMUpdated: July 15, 2020, 7:01 PM

A group of 10 House Republicans led by Rep. David McKinley (R-W.Va.) is urging House Minority Leader Kevin McCarthy to press for language in the next pandemic aid package that would direct OSHA to issue an emergency temporary standard covering virus transmission in the workplace.

Occupational Safety and Health Administration leaders have resisted calls from congressional Democrats and labor unions to take such a step. Republicans have blocked prior Democratic efforts to include similar language in virus-relief legislation, and the McKinley-led letter is a rare instance of House Republican members publicly pressuring leadership to change course.

The Republican lawmakers argued an emergency temporary standard would not only protect workers but also enhance public confidence in return-to-work plans and help to shield employers from virus-related lawsuits.

“Issuing an emergency standard would protect the health and safety of millions of Americans and reduce the size of a ‘second wave’ of infections as the economy reopens,” the letter, sent Tuesday, said.

A media representative for McCarthy (R-Calif.) didn’t respond to a request for comment.

Focus on Enforcement

The letter noted that businesses are relying on “a patchwork of guidance” from OSHA, the Centers for Disease Control and Prevention, and state and local authorities. The lawmakers said OSHA has issued advice specific to several industries, but added that it is “suggested and not enforceable.”

OSHA’s top official, Loren Sweatt, and Labor Secretary Eugene Scalia, have said repeatedly that an emergency temporary standard isn’t necessary. They contend that the general duty clause in the Occupational Safety and Health Act, which requires employers to provide workplaces free of known hazards, is the better enforcement tool.

Republican lawmakers have defended OSHA’s refusal to develop an emergency standard by pointing out that the Obama administration issued guidance, and not an emergency or permanent workplace safety rule, during its response to contagious diseases such as H1N1 (swine flu) and Ebola.

McKinley and the other House Republicans who signed the letter said an emergency temporary standard could help protect employers from “frivolous lawsuits” and give business leaders “peace of mind” as they reopen operations.

“Simply put, if businesses abide by the OSHA standards they should be protected from baseless lawsuits,” the letter states.

Efforts in Court

The letter follows the D.C. Circuit’s rejection of the AFL-CIO labor federation’s request to compel OSHA to issue an emergency temporary standard to protect workers.

In June, two unions filed a petition with the D.C. Circuit to force the Labor Department’s Mine Safety and Health Administration to issue an emergency standard. That pending case was brought by the United Mine Workers of America International Union and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.

Liability protections for businesses are a top Republican priority in the next coronavirus stimulus bill. Senate Republican leaders plan to release a proposal next week, but Democratic leaders say liability protections are a non-starter.

Marc Perrone, head of the United Food and Commercial Workers International Union, said in a July 13 letter to all members of Congress that his group “rejects calls for employer immunity, which would only exacerbate the current crisis.” Perrone said the “best way to keep our essential businesses up and running, and to reopen additional businesses, is to ensure that workers have the protections they need.”

Other House Republicans who signed the letter include Brian Fitzpatrick (Pa.), Donald Bacon (Neb.), Rodney Davis (Ill.), Chris Smith (N.J.), John Katko (N.Y.), Pete Stauber (Minn.), Adam Kinzinger (Ill.), Don Young (Alaska), and John Shimkus (Ill.).

(Updated with additional reporting.)

To contact the reporters on this story: Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com; Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com