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Federal Virus Emergency Rule Can Be Pieced Together Under Biden

Dec. 21, 2020, 4:45 PM

If the Biden administration follows the wishes of congressional Democrats, employers may have to comply with a nationwide Covid-19 worker protection rule in early February.

President-elect Joe Biden (D) has long criticized the Trump administration for not enacting a virus rule and promised to issue an emergency standard after taking office.

“I am confident the incoming Biden administration will prioritize an emergency temporary standard that covers all workers, protects employees from employer retaliation, and requires the tracking of Covid-19 workplace infections,” the chairman of the House Committee on Education and Labor, Rep. Bobby Scott (D-Va.), told Bloomberg Law in an email.

Since January, the committee has repeatedly asked OSHA to issue an enforceable workplace safety standard, Scott added. The House has twice approved bills calling for enactment of a rule within seven days of the measure becoming law, but neither proposal earned Senate approval.

Outlines for a federal rule have already been written by congressional Democrats, states, and the Obama administration OSHA.

Enacting a rule quickly will require having the essential mandates already nailed down and someone with “intimate knowledge” of rulemaking requirements and the agency to guide the process, according to a former OSHA official who asked not to be named.

Biden has yet to announce who he wants to lead the Department of Labor or fill OSHA’s top appointed posts.

There also will need to be agreement that the emergency standard can’t get stalled while going through Labor Department reviews or at the White House Office of Management and Budget, the former official added.

Emergency Rule Road Map

The road map for issuing an emergency rule is part of the 1970 law that created OSHA.

The Occupational Safety and Health Act says the agency may write the standard without any notice or opportunity for public comment. As part of the rulemaking, OSHA must show that employees are exposed to a new “grave danger” and that the emergency standard is necessary.

Marc Freedman, vice president of employment policy at the U.S. Chamber of Commerce in Washington, said OSHA should ask for employers’ opinions before enacting an emergency rule.

“We always hope to have a place in the process,” he said.

The standard would be immediately effective when published in the Federal Register and could stay in effect for six months, or less if it’s replaced by a permanent rule.

However, the standard could be challenged in federal court once it takes effect. Of the nine times OSHA issued an emergency standard, federal courts vacated or stayed the standard four times. OSHA’s last emergency rulemaking, a 1983 standard covering asbestos exposure, was among those vacated.

OSHA is required by law to begin work on a permanent standard as soon as a temporary rule is enacted and to issue the mandate within six months. Drafting a permanent rule includes public comment and all the other steps of a normal rulemaking.

Attorney Courtney Malveaux, a principal with Jackson Lewis P.C. in Richmond, Va., and co-leader of the firm’s workplace safety group, said he’d prefer an OSHA rule that didn’t lock itself in to specific requirements, such as the number of days a worker who came in contact with an infectious person must quarantine.

Instead, the standard could refer to Centers for Disease Control and Prevention guidance so that if the CDC changes quarantine timelines, the rule wouldn’t become out of date, Malveaux said.

While the Trump administration has refused to enact a rule specifically covering coronavirus infections, House Democrats have outlined provisions they expect to be in a rule. Also four states—California, Michigan, Oregon, and Virginia—have enacted their own rules.

And, OSHA has on file a 2010 proposed rule that would protect health-care workers from airborne infectious diseases such as Covid-19.

Reviving 2010 Proposal?

Richard Fairfax, OSHA’s career-service deputy assistant secretary of labor during much of the Obama administration’s first term and now a consultant with ORC HSE Strategies in Washington, said OSHA staff could revive the 2010 proposed rule and determine how much of it applied to a Covid-19 standard.

The 2010 infectious diseases rulemaking stalled after a 2014 small business review and was set aside as the agency focused on issuing its silica dust rule in March 2016. The Trump administration in 2017 assigned the proposal to OSHA’s long-term project list, where proposed regulations often fade away.

The proposed 2010 rule would require health-care employers to implement infection control practices recommended by the CDC and the health-care regulator the Centers for Medicare and Medicaid Services. Democrats in 2020 are pushing for a similar rule with reach beyond health-care employers.

Other requirements include having a written worker infection control plan, determining exposure risks for individual workers, making needed physical building alterations, changing how tasks are done, vaccinating workers, and using protective clothing.

States have included many of the proposed rule’s requirements in their Covid-19 rules.

Heroes Act

The Covid-19 standard proposed in the House’s Heroes Act would cover several additional industries including construction, food processing and harvesting, stores, warehouses, transportation, education, hotels, restaurants, delivery services, and prisons.

The bill would mandate employers conduct a Covid-19 hazard assessment, develop an exposure control plan including social distancing and health screenings, and conduct training.

The House bill also would set new record-keeping requirements such as reporting to OSHA within 24 hours any outbreak of three or more confirmed positive Covid–19 diagnoses that have occurred among employees within 14 days.

The bill recognized that employers may not be ready to immediately comply with the rule. The bill would allow OSHA to avoid citing an employer if the agency concluded the employer was “exercising due diligence” to comply and “implementing alternative methods and measures to protect employees.”

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; Karl Hardy at khardy@bloomberglaw.com

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