Coming Soon - OSHA’s COVID-19 Rule

Foley & Lardner LLP

Foley & Lardner LLPOSHA’s long-awaited emergency temporary standard on COVID-19 is one step closer to taking effect. According to news reports, the Department of Labor submitted the rule to the White House’s Office of Management and Budget for review on April 26, 2021.  The White House has also scheduled nine meetings with organizations, including unions and business groups, through May 5 to discuss the proposed rule.

On his first full day in office, President Biden ordered OSHA to consider the need for a national rule on COVID-19 and publish the rule by March 15.  That deadline has passed, but in the meantime, OSHA has taken a number of other regulatory actions intended to protect workers, including issuing guidance on best practices to prevent COVID-19 exposure at work and a national emphasis program intended to prioritize enforcement efforts on workplaces with a high risk of exposure.

OSHA delayed issuing the rule in order to take into account the latest scientific data, according to Secretary of Labor Marty Walsh.  The rise in COVID-19 vaccinations, as everyone age 16 and older is now eligible, has also complicated this issue, with many employers questioning the need for an emergency standard given the availability of vaccines more than one year into the pandemic.

It remains unknown what OSHA’s nationwide standard on COVID-19 will precisely entail, but it reportedly may consist of separate rules for health care employers and other industries, and could include:

  • Implementing a written plan
  • Supplying masks
  • Enforcing social distancing
  • Cleaning and disinfection
  • Training workers

When the White House review process is complete, the emergency temporary standard will take effect immediately and remain in place for up to six months.  (The last time OSHA issued an emergency standard, separate from the normal rulemaking process, was in 1983 to deal with exposure to asbestos).  An emergency standard is also likely to face legal challenges.

Employers should keep up their COVID-19 prevention efforts in the meantime and stay tuned for further developments.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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