The White House Begins Its Review of OSHA’s Belated COVID-19 ETS, But is the Standard Needed?

Seyfarth Shaw LLP

On April 26, 2021, OSHA referred its COVID-19 emergency temporary standard (“ETS”) to the White House’s Office of Information and Regulatory Affairs (“OIRA”).  OIRA reviews agency standards to facilitate finalization and publication.

With President Biden’s March 15 deadline for OSHA to issue a COVID-19 ETS more than a month in the past, even those who anticipated a delayed response had started to question whether OSHA would issue a standard. Indeed, the longer the ETS takes to issue – and, to be clear, it hasn’t yet issued – the less sense it makes. For OSHA to promulgate an ETS, section 6(c) of the Occupational Safety and Health Act requires “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and . . . that such emergency standard is necessary to protect employees from such danger.” As COVID-19 vaccinations increase – and demonstrate high rates of effectiveness, particularly at preventing serious illness and death – the more OSHA delays, the harder it will be to justify that an “emergency standard is necessary to protect employees” from “grave danger.”

According to the CDC’s COVID Data Tracker as of April 26, in the United States:

  • Over 232 million vaccine doses have been administered, meaning President Biden far-exceeded his goal to administer 200 million doses in his first 100 days.
  • Over 54% of the U.S. population, 18 and older, has received at least one dose.
  • Over 81% of the U.S. population, 65 and older, has received one dose; and
  • Almost 30% of the entire U.S. population is fully vaccinated.

While the rolling average for doses administered per day may be declining, that is likely because those who raced to be front-of-line for distribution have received their vaccines. The government may need to reorient its strategy to attract more passive potential recipients, as well as individuals who are on the fence about getting the vaccine.

Beyond battling the passage of time and increasing vaccination numbers, OSHA will need to justify its change in position on the need for an ETS, as former Secretary of Labor Scalia and former Principal Deputy Assistant Secretary for OSHA Loren Swett both opined that OSHA’s toolkit already included what it needed to enforce COVID-related violations. The Biden Administration may be unwittingly confirming these assertions by increasingly issuing COVID-related citations under the General Duty Clause of the OSH Act, section 5(a)(1), to require employers to mandate, e.g., masking and social distancing.

OSHA’s issuing an ETS also implicates federalism, as it will apply in any states that follow federal OSHA regulations, including Texas and Florida, which are among the states on the forefront of rolling back COVID-related risk mitigation protocols. States with their own OSHA plans – e.g., Kentucky, Tennessee, and the Carolinas – will need to issue their own ETSs within 30 days that are “at least as effective” as OSHA’s. Then there are states like California and Virginia that have their own regulations already in effect; they’ll need to ensure what they’ve previously promulgated is at least as effective as the OSHA ETS.  A state like New York that recently passed the HERO Act to protect workers from aerosol transmissible diseases may now run into federal preemption issues because of the anticipated ETS.

OSHA has never mandated vaccinations, with its Bloodborne Pathogen standard requiring that employers offer certain employees the Hepatitis B vaccine likely coming the closest. We don’t anticipate any vaccine requirement in the ETS, but we should expect the OSHA ETS to require employers to follow CDC guidance; to incorporate OSHA’s January 29, 2021 publication, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”; and to adopt provisions from state ETSs.

We can expect litigation challenging the ETS from states and from associations like the U.S. Chamber of Commerce.  Challenges to OSHA ETSs have had mixed success, with the Congressional Research Service noting that of the nine ETSs OSHA has issued “courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.”

Perhaps OIRA will introduce additional roadblocks to publishing OSHA’s ETS, but while we await the standard’s review, employers should consider the resources above to ensure they’ll be ready to comply, if needed.

For a deeper dive into the possibility of an OSHA ETS and how it could affect your business, join us on Tuesday, May 4th for Seyfarth’s Webinar: The Biden Administration: Actions on Labor and Employment in the First 100 Days. 

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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