On April 26, OSHA sent its COVID-19 emergency temporary standard (ETS) to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) for review. OIRA is the regulatory “gatekeeper” that is required, under various executive orders, to review proposed rules from agencies before their release. Based on this action, it is expected the ETS’s could take effect within the next two weeks and there is speculation that it includes separate requirements for higher risk industries such as health care and other requirements for non-health industries.
However, it is almost certain that an ETS would face legal challenges from business industry groups, among others. OSHA’s last attempt to issue an ETS would have regulated the U.S. Court of Appeals invalidated asbestos exposure in 1984. The court rejected the ETS, in part because OSHA did not sufficiently show there was a “grave danger” that people would likely suffer a serious illness or die without it. The same issue will most likely afflict any COVID-19 ETS, particularly with the increased availability of vaccines. Moreover, OSHA during the Trump administration stated numerous times that an ETS was not necessary and that was during the height of the pandemic in terms of rising positive cases and before vaccines were available. Furthermore, as more businesses and states return to work and ease up or entirely remove restrictions and the CDC loosening up its recommendations, these facts will make it difficult for OSHA to meet the grave danger standard now. The delay in issuing an ETS also suggests the move is based less on bona fide safety concerns and more on politics.
If an ETS is overruled – will that be the end of the conversation? Probably not. OSHA could also introduce a permanent “infectious disease” standard through the more traditional rulemaking process. There have been historical support from labor and other worker advocacy groups. In fact, on June 11, 2020, the U.S Court of Appeals denied the AFL-CIO’s petition for a writ of mandamus to compel OSHA to issue an ETS for Infectious Diseases. If OSHA takes this approach, it is also likely that such a proposed standard could be tied up for years in the rulemaking process and would likely die there if the Republicans take back the House in November of 2022.
The AFL-CIO has already had a “listening” session with OIRA this week, even though no one outside the federal government has seen the proposal. Businesses and industry groups that want to request a similar session to offer ORIA their comments and concerns are encouraged to contact counsel immediately to ensure that their circumstances are considered before the proposal is returned to the Department of Labor from OIRA.