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OSHA Virus Rule Intended to Cover All Workers, Draft Shows (1)

June 28, 2021, 2:16 PMUpdated: June 28, 2021, 7:19 PM

OSHA’s emergency standard protecting health-care workers from Covid-19 that was issued June 10 after months of anticipation originally was intended to protect all workers, a draft version of the rule obtained by Bloomberg Law showed.

The 780-page draft standard and justification formally submitted to the White House on April 26 made it clear Occupational Safety and Health Administration staff had concluded a “grave danger” threatened the health of all U.S. workers, not just workers in health care who had been deemed essential during the darkest days of the pandemic.

“OSHA has determined that employee exposure to this new hazard, SARS-CoV-2 (the virus that causes COVID-19) presents a grave danger in every shared workplace in the United States,” the draft said. “This finding of grave danger is based on the science of how the virus spreads as well as the adverse health effects suffered by those diagnosed with COVID-19.”

Yet, the final version of the emergency temporary standard that took effect June 21 and has a July 6 compliance deadline for employers limited the standard to only health-care employees, prompting at least two lawsuits by unions seeking a broader regulation.

The White House’s Office of Management and Budget provided a copy of the draft standard in response to a request from Bloomberg Law.

While acknowledging the impact vaccines would have on Americans, the April draft still concluded a standard should apply to all workplaces. As more workers become vaccinated and more was learned about the effectiveness of vaccines, OSHA would have several options—including terminating the standard, revising it, or pausing its enforcement.

“OSHA recognizes the promise of vaccines to protect workers, but as of the time of the promulgation of the ETS, vaccination has not eliminated the grave danger presented by the SARS-CoV-2 virus,” the draft said.

A U.S. Department of Labor spokesperson in a statement Monday defended the health-care only decision.

“On June 10, OSHA announced that it could make the most impact by issuing an emergency temporary standard focused on healthcare settings,” the spokesperson wrote in an email. “This approach closely follows the CDC’s guidance for healthcare workers and the science, which tells us that those who come into regular contact with people either suspected of having or being treated for COVID-19, are most at risk.”

Guidance Is Lacking

Organized labor supporters said workers will have to rely on non-mandatory guidelines for protection since most industries were removed from the final standard.

“Current guidelines are inadequate, and are not enforceable, resulting in millions of workers left unprotected on the job,” AFL-CIO President Richard Trumka said in a statement to Bloomberg Law. “An enforceable workplace safety standard that protects all workers is key to beating this pandemic.”

OSHA said in its April draft that regulations and non-mandatory guidance from the agency and the Centers for Disease Control and Prevention at the time were insufficient.

“OSHA has determined that each of these tools, as well any combination of them, is inadequate to address COVID-related hazards, thereby establishing the need for this ETS,” the draft standard said.

The final version of the emergency standard also dropped the draft’s requirements for employers outside of health care to track all Covid-19 cases among workers and report hospitalizations and deaths to the agency.

Debbie Berkowitz, safety and health program director for the National Employment Law Project in Washington, said the recordkeeping mandates must apply to all employers “to assure that any possible new outbreak in the workplace is found early.”

A butcher works to process meat at Old Fashion Country Butcher in Santa Paula, Calif., on May 21, 2020 as the coronavirus pandemic shuttered some plants and strained the nation’s food supply chain. The company abides by federal safety procedures and conducts wellness checks daily, the owner, Kent Short, said.
Brent Stirton/Getty Images

Meatpackers at Risk

A significant difference between the draft and final version of the standard are references to the hazards meatpacking workers faced: The final version, which doesn’t apply to the meat-processing industry, made only five references to meatpacking, while the draft version included more than 30 references.

OSHA sometimes relied on general duty clause citations to convince employers, including meatpackers, to comply with OSHA guidance to protect workers from contracting the virus. The clause requires employers to provide workplaces free of known, lethal hazards that can be mitigated.

“One of the General Duty Clause citations OSHA issued in 2020 was to a large, international employer running a meatpacking plant that failed to take sufficient measures to mitigate the spread of COVID-19 among workers,” the draft said. OSHA determined it could only issue one general duty clause citation with a total proposed penalty of $13,494, the maximum penalty allowed by law for serious violations.

“OSHA has been limited in its ability to impose penalties high enough to motivate the very large employers who are unlikely to be deterred by penalty assessments of tens of thousands of dollars, but whose noncompliance can endanger thousands of workers,” the draft said.

Long Haul

It’s not clear from the draft when OSHA dropped the idea of covering all workers in favor of a health-care-only standard.

President Joe Biden issued an executive order to OSHA on Jan. 21 telling the agency to consider the need for a standard and if warranted, prepare the standard by March 15. But OSHA missed that deadline and more weeks passed. Labor Secretary Marty Walsh said on April 6 he had “ordered a rapid update” of the unfinished standard based on the Centers for Disease Control and Prevention analysis of virus dangers and the latest information on vaccinations and the variants.

The draft rule went to the White House’s Office of Information and Regulatory Affairs for a review on April 26. That’s considered the last step before a regulation is published in the Federal Register and becomes official. During a typical review, other agencies vet a draft standard for possible program and jurisdictional conflicts and to ensure the standard can withstand legal challenges.

The emergency standard spent six weeks under review at OIRA, part of the Office of Management and Budget, where it was the focus of more than four dozen meetings with business and worker representatives before being released June 10 (RIN:1218-AD36).

Howard Shelanski, who led OIRA during the second term of the Obama administration, said in an interview earlier this month the OSHA standard was likely subject to a close OIRA review because as an emergency standard, the proposal hadn’t been through a public comment period where OSHA would have listened to concerns and explained why the standard was needed and viable against a court challenge.

When the standard finally was issued, it applied only to health-care workers; other workers would be protected by updated guidance.

During the months between Biden’s order and the standard’s release, business groups argued increasing vaccination rates were making it implausible for OSHA to claim Covid-19 still posed grave danger to workers. And as OIRA’s review continued, the CDC on April 27 and May 13 updated its guidance, relaxing mask requirements for fully vaccinated people.

Unions and other worker support groups said the standard was still needed to protect unvaccinated workers and serve as backstop if Covid-19 variants made vaccines less effective.

The AFL-CIO labor federation, the United Food and Commercial Workers, and National Nurses United filed lawsuits with federal appeals courts on June 24 asking the courts to review the standard.

The standard “fails to protect employees outside the healthcare industry who face a similar grave danger from occupational exposure to COVID-19,” the AFL-CIO said in its petition for review.

(Updated with additional reporting throughout. )

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; Travis Tritten at ttritten@bgov.com; Andrew Harris at aharris@bloomberglaw.com

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