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Covid-19 Regulation Still on Agenda, OSHA Chief Doug Parker Says

Feb. 14, 2022, 11:30 AM

The most urgent rulemaking for the federal government’s worker safety agency is enacting a permanent Covid-19 standard for the health-care industry, OSHA chief Doug Parker told Bloomberg Law.

“It’s the occupational hazard of our time and we’ll continue to treat it like that as long as necessary,” Parker said of Covid-19 in a Feb. 10 exclusive interview.

Parker, the assistant secretary of labor for occupational safety and health sworn in on Nov. 3, discussed the rulemaking during a wide-ranging discussion that included questions about the need to increase the number of Occupational Safety and Health Administration inspectors and the agency’s enforcement priorities.

OSHA also continues to work on a more encompassing infectious disease standard for health care that would be completed after the Covid-19 measure is enacted.

“This is a long-standing effort that began in the Obama administration,” Parker said. “The pandemic demonstrates the importance of having a general standard in place for high-hazard industries like health care.”

His comments about the two health-care rule proposals clarify the agency’s path forward from a tumultuous winter of setbacks.

The Supreme Court on Jan. 13 blocked OSHA’s shot-or-test mandate for workers at the biggest U.S. employers. Two weeks earlier, the agency had announced it was halting enforcement of a Covid-19 emergency temporary standard specifically for health-care providers, unveiled in June, that required infection control programs and other measures because it hadn’t met a Dec. 21 deadline to enact a permanent rule.

Several unions are asking a federal appeals court to require OSHA to complete that health-care workers regulation within 30 days of a court order. Oral arguments before the U.S. Court of Appeals for the District of Columbia Circuit are set for April 4.

Rulemaking Persistence

The permanent Covid-19 health-care standard will use the now-lapsed emergency standard as its basis, Parker said, adding the agency hasn’t determined if there will be a hearing and/or another round of public comments before the final version of the standard is enacted.

“That’s under active decision making,” he said. “But we understand the urgency of moving that forward, so any reopening of the record would be happening very soon.”

Parker said OSHA believes the Supreme Court ruling that forecast its rejection of the vaccine mandate later withdrawn by the agency still allows it to continue protecting workers from on-the-job hazards, even when there are similar exposure risks outside of work.

“You can fall of a ladder at home, too,” he said.

The emergency health-care Covid-19 standard didn’t require vaccinations or testing, but it did allow exceptions to some portions of the rule, such as social distancing indoors, if all the workers “in a well-defined area” were fully vaccinated.

Many health-care employers that would be covered by the standard are already having to comply with the vaccination mandate from the Centers for Medicare and Medicaid Services that is being enforced while under court challenges by some states and employees.

Even without Covid-19 specific rules to enforce, virus-related inspections account for about 8% percent of OSHA inspections, Parker said. The agency’s goal was 5%. Since April 2020, OSHA has conducted 3,587 Covid-19 related inspections and issued citations in about 765 cases, agency enforcement data shows.

Cal/OSHA Influence?

Employer and worker advocates alike have speculated the health-care standards will parallel the health-care requirements adopted by the agency Parker led before arriving at OSHA—the California Division of Occupational Safety and Health, commonly called Cal/OSHA.

Parker said he’s open to considering what states have done.

“Federal OSHA will always look to these state agencies who moved first on rules to see what we can borrow from that,” he said, then added, “Federal OSHA—it’s a different environment than California and we’ll be making our own decisions based on the process we have the federal level and the comments of national stakeholders.”

Beyond Covid-19, Parker has focused on filling inspector and senior staff positions.

The agency ended fiscal year 2021 with 750 inspectors, the lowest level in OSHA’s 51-year history, according to the agency. As of January, OSHA had 761 inspectors and 210 supervisors in the field.

“While it is a competitive market, the interest in OSHA right now is strong and we will continue to rebuild,” Parker said. “I’ve been pleased that in the last six months, we’ve made about 100 CSHO [compliance safety and health officer] hires,” he said. At the same time, about 50 inspectors left the agency, resulting in a net gain of 50.

OSHA Is Hiring

President Joe Biden has said he wants to double OSHA’s inspector numbers by 2024, but that goal is dependent on Congress approving more positions for the agency. While Biden asked for 155 new positions in his fiscal 2022 budget request, Congress is still debating the agency’s appropriation. Congress did fund 85 new positions in a pandemic relief bill, the American Rescue Plan Act.

Even without a fiscal 2022 budget in hand, the agency continues to recruit new inspectors for open and new positions, Parker said.

Parker is also filling OSHA senior career service executive positions that had been filled on an acting basis. At the close of the Trump administration in January 2020, nine of the regulator’s 16 senior staff positions were held by acting leaders. As of Feb. 11, five were held by acting administrators.

Parker anticipates soon filling all but one of those five open senior posts.

“I have to hand it to folks who have been serving in an acting role,” Parker said. “They’ve done a tremendous job. People have really stepped up. But it’s in the best interest of everyone to have permanent leadership throughout the agency.”

While construction safety continues to be a focus for OSHA, especially with new federally funded infrastructure projects breaking ground, Parker said the virus is his immediate priority.

“It’s difficult to be prognosticator about Covid. I’m hopeful that things will change and that not be the case, but as long as it has the current prevalence and is having the impact it is having on workers—it is going to continue to be a priority.”

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

To contact the editor responsible for this story: Andrew Harris at aharris@bloomberglaw.com, Melissa B. Robinson at mrobinson@bloomberglaw.com