No Safety Standard on COVID-19 for Federal OSHA

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Virginia Issues First Workplace Safety Standard on COVID-19, but Federal OSHA Charts a Different Path

Since the outset of the coronavirus pandemic, worker advocates and labor unions have called on the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) for workplace safety designed to mitigate the COVID-19 threat posed to workers. Democratic lawmakers have largely echoed calls for a standard, claiming workers lack protection without one.

Business groups, on the other hand, have argued the government should not issue a detailed standard at this time, because the process for changing standards is cumbersome and our understanding of how to best mitigate COVID-19 risks continues to evolve. Business advocates claim OSHA should instead focus on providing guidance on safe practices and punishing bad actors by bringing citations under the Occupational Safety and Health Act’s (OSH Act) General Duty Clause, under which employers have a duty to protect employees “from recognized hazards that are causing or are likely to cause death or serious physical harm.”

To date, federal OSHA has resisted demands to issue an ETS. Instead, the agency is protecting workers by partnering with the Centers for Disease Control and Prevention (CDC) to provide consistent, industry-specific guidance and issuing citations under the General Duty Clause. Advocates sued the agency, claiming this approach was insufficient and that OSHA must issue an emergency standard. The U.S. Court of Appeals for the D.C. Circuit rejected the suit, however, finding that the decision to not issue a standard in this situation was within OSHA’s discretion.1

In the meantime, OSHA and the CDC continue to issue and refine guidance. With respect to enforcement, as of mid-September the agency had received 8,824 complaints and was investigating 1,011 cases. On September 13, OSHA reported the issuance of five citations “for failing to protect employees from the coronavirus,” two of which were cited under the General Duty Clause.

Virginia issues standard

While federal OSHA has not issued a standard, one of the 22 states that run a state OSHA plan covering private-sector workers has promulgated its own standard, and others are considering doing so. Under the OSH Act, states may have their own agencies regulate occupational safety and health within their state instead of OSHA, but federal OSHA must monitor state plans, and the plans “must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses and deaths.”

On July 15, the state of Virginia became the first to implement an ETS on COVID-19 under their OSHA state plan (VOSH). The ETS covers every employer in Virginia, and it establishes several baseline obligations employers must meet to comply with the rule, with additional requirements depending on the level of risk employees face in their workplaces. Provisions of the ETS include mandates such as performing a hazard assessment, implementing feasible engineering and administrative controls, implementing an Infectious Disease Preparedness and Response Plan (IDPRP) and conducting training. The Virginia ETS went into effect July 27 and provided employers 30 days, until August 27, to train employees on the regulations and 60 days, until September 28, to develop their IDPRPs.2

Business groups in Virginia have opposed the ETS and now worry about the regulatory and financial impact it will have on business owners. They have argued that ensuring compliance for the standard will take away valuable time from employers already struggling during the pandemic, that the standard sets up the business owner for lawsuit liability if an employee contracts the virus and that the standard might already be out of date with current CDC recommendations.

Though Virginia is the only state to establish a coronavirus-specific ETS so far, other states have indicated they are working toward establishing their own standard. For example, Oregon OSHA released a draft ETS in August that would also apply to all workplaces, but with specific requirements for certain work activities that create more risk for employees. Oregon OSHA provided a public comment period for stakeholder input, which has now closed. Without additional efforts at the federal level, it’s reasonable to expect that more states will begin efforts to implement their own standards.

Legislative efforts to require OSHA to issue ETS

Although states appear to be having more success with implementing an ETS, advocates have not abandoned their efforts to get federal OSHA to issue a standard. Throughout the pandemic, several bills have been introduced in Congress that would mandate OSHA to issue an ETS.

H.R. 6139, the “COVID-19 Health Care Worker Protection Act of 2020,” which was incorporated into the first round of stimulus-funding legislation, the “Families First Coronavirus Act” (H.R. 6201), would have required OSHA to promulgate a COVID-19 ETS within one month of enactment. However, the OSHA ETS provisions were not included in the version of the legislation that was passed by the House and the Senate and signed into law.

After H.R. 6139 failed to pass, H.R. 6559, the “COVID-19 Every Worker Protection Act of 2020,” was introduced and included in the “Heroes Act” (H.R. 6800), which would require an OSHA ETS as well as a permanent standard to address COVID-19, require employers to report work-related COVID-19 cases and expand protections for whistleblowers. The “Heroes Act” passed the House in May but has not been considered by the Senate.

These legislative efforts are opposed by certain lawmakers, OSHA and industry stakeholders who argue that an ETS would make the nation’s response to the virus less agile in adapting to our evolving understanding of the virus. TCIA echoed some of these concerns and joined 58 organizations in sending a letter to Congress urging them instead to allow OSHA to continue to use the General Duty Clause, in conjunction with OSHA’s latest industry-specific guidance on COVID-19 workplace protocols, as the primary method for enforcing safe workplaces. The letter argues that a rigid ETS would make it more difficult for OSHA, employers and employees alike to quickly make necessary adjustments to their protocols during a time in which our understanding of the virus rapidly evolves.

It is likely there will be additional state and federal efforts to implement an ETS to combat COVID-19. The TCIA Government Relations team will continue to monitor these efforts and keep members apprised of any that will impact the industry.

Citations

  1. The court agreed that OSHA reasonably determined that its existing statutory and regulatory tools are protecting America’s workers and that an emergency temporary standard is not necessary at this time. (see https://www.osha.gov/news/newsreleases/national/06112020)
  2. VOSH has provided outreach, education and training materials at https://www.doli.virginia.gov/covid-19-outreach-education-and-training/.

Basil Thomson is a senior associate at Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner.

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