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Will OSHA Meet Virus Rule Deadline? Most Agree Delay Coming

March 12, 2021, 2:33 PM

Federal workplace safety regulators rushing to come up with a Covid-19 emergency temporary standard by March 15 are getting heat from industry, which wants only updated guidance, and from worker advocates, who are seeking strict protections from airborne spread of the virus.

An OSHA emergency rule is expected to require employers to conduct an analysis of Covid-19 infection risk to workers and then implement protection programs based on guidance from the Centers for Disease Control and Prevention. But the lack of information from the Occupational Safety and Health Administration has led to speculation that the agency may miss the March 15 deadline set by President Joe Biden’s Jan. 21 executive order.

“This is a Herculean task,” said Debbie Berkowitz, who served as chief of staff at OSHA during the first term of the Obama administration and now is worker safety director for the National Employment Law Project.

“I wouldn’t be surprised or alarmed if it is delayed a week to 10 days,” she said in a phone interview.

OSHA and the Department of Labor, which oversees the agency, have declined numerous requests to discuss the rule. As of Thursday, the agencies still hadn’t said if a determination had been made that Covid-19 poses a “grave danger” to workers. The federal law permitting OSHA to issue an emergency temporary rule without holding public hearings only allows the fast-paced rulemakings in cases of new hazards that pose a grave danger.

Berkowitz pointed out that because the Trump administration had decided not to pursue a Covid-19 standard, OSHA staff couldn’t begin work on a rule until the Biden administration took office on Jan. 20.

A Democratic congressional aide speaking on background also addressed the possibility of the March 15 goal being missed. “If it’s a short delay, that’s fine, but if it drags on, that’s going to be a problem,” the aide said.

What’s Inside Matters

Even with just days left before the administration reaches its self-imposed deadline, worker advocates are pressing for a standard that would go beyond OSHA’s current expectations for employers.

“OSHA’s forthcoming standard must reflect the newest science on Covid-19 transmission and worker protection,” former OSHA head David Michaels said during a hearing Thursday before the House Education and Labor Workforce Protections Subcommittee.

Michaels led OSHA for most of the Obama administration and is now a professor of occupational and environmental medicine at The George Washington University in Washington, D.C. He’s among those calling for the CDC and OSHA to set strict requirements to prevent airborne spread of the disease.

Any rule issued will almost certainly face a challenge in federal court.

“Not one ETS had been issued since 1983 because of the legal challenges and lack of due process for affected stakeholders,” Rep. Fred Keller (R-Pa.), the senior Republican on the workforce protections subcommittee, said during the hearing.

Of the nine emergency temporary standards enacted by OSHA since 1970, six were contested in court, and judges stayed or vacated four of the standards, according to a Congressional Research Service report.

Keller and other Republicans favor OSHA abandoning the rulemaking and instead focusing on updating guidance.

The National Retail Federation also opposes an OSHA standard and favors a continued dependence on guidance.

“Retailers are concerned about the possibility of OSHA issuing a rigid, one-size-fits-all emergency regulation, particularly during a global pandemic that has already imposed substantial economic hardship,” David French, the federation’s senior vice president for government relations, said in a letter Thursday to subcommittee members.

The federation is contesting California’s emergency Covid-19 rule. A state judge in February refused to approve an injunction that the federation and others sought to prevent enforcement of the state standard.

—With assistance from Fatima Hussein

To contact the reporter on this story: 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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