On April 26, 2021, the Occupational Safety & Health Administration sent emergency workplace safety rules to prevent the spread of COVID-19 to the Office of Management and Budget for review.
Since the COVID-19 pandemic began in 2020, OSHA has fielded thousands of complaints related to employee safety in the workplace and the spread of the virus. Additionally, OSHA has come under fire for not doing enough to protect healthcare and other frontline workers from the risk of infection. OSHA has the authority to issue emergency temporary standards, with immediate effect, if it determines U.S. workers are in "grave danger" due to exposure to a new hazard and such standard is necessary to protect employees from the danger. Nevertheless, the prior administration declined to enact emergency regulations, stating the agency could protect workers against the risks of COVID-19 through its existing standards.
Once President Biden took office, his administration issued Executive Order 13999, giving the U.S. Department of Labor until March 15 to determine whether emergency workplace safety rules were necessary to combat the spread of COVID-19 in the workplace. Concurrently, the Department of Labor's Inspector General issued a report finding that OSHA "has not been providing the level of protection that workers need at various job sites." And, on March 12, OSHA issued Directive Number DIR 2021-01, establishing a National Emphasis Program on COVID-19. OSHA did not, however, announce any decision on the need for an emergency standard, and the March 15 deadline came and went.
As COVID-19 case numbers have again surged, even as the pace of vaccinations continues to increase and many states have relaxed or eliminated safety precautions, OSHA has come under increasing pressure from Congress to make a decision on the need for an emergency standard. Administration officials have been called to testify before the House Education and Labor Subcommittee on Workforce Protections on April 30 to explain the status of the emergency standard. Further, following a conference call with nurses last week, U.S. Representatives Debbie Dingell, Andy Levin, and Rashida Tlaib, all Democrats from Michigan, sent a letter to President Biden on April 26 chastising the administration for the delay in issuing the standard, stating "[t]he delay in issuing this standard is resulting in illness and death for our workers."
It is unknown what provisions are in the emergency temporary standard or when OMB will complete its review. While OMB can spend as little or as much time as it wants on its review, reports suggest the review period will be approximately two weeks. The standard will have immediate effect upon publication in the Federal Register. Upon publication, the rules will stay in effect for six months or until a permanent standard is adopted following the usual rulemaking procedures.
While the exact content of the emergency temporary standard is unknown at this time, employers in states that have relaxed or eliminated COVID-19 rules should prepare to quickly comply with new regulations on masks, social distancing, cleaning and disinfection, and other safety measures. Employers in states or localities that have maintained robust safety precautions will be faced with ensuring compliance with yet another layer of government regulations.
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