Critiques of OSHA’s current flexible approach to COVID-19 in the workplace provide insight into how a Democratic administration might regulate differently at the federal level.  Moreover, some states have moved forward with establishing binding rules to address COVID-19 in the workplace, which may provide models for future federal efforts.

As the COVID-19 pandemic continues, the Occupational Safety and Health Administration (OSHA) faces criticism from some for not adopting a binding emergency temporary standard (ETS). Certain states are moving forward with adopting their own binding standards, and there is a possibility of a federal temporary standard should the Presidential Administration change next January.

Typical federal notice-and-comment rulemaking can take years.  Instead of pursuing rulemaking, OSHA has published a variety of non-binding guidance documents in response to the pandemic,[1] which allow it to act swiftly and outside of the rulemaking strictures.  While the resulting documents technically create no new legal obligations for employers, employers deviate from OSHA guidance at their peril, because they may face an enforcement action under the Occupational Safety and Health Act’s General Duty Clause.  OSHA has emphasized in recent litigation that its guidance “demonstrate[s] feasible methods employers may use” to address COVID-19 risks, and “thereby enhances the power of the general duty clause as an enforcement tool,” should employers not follow the guidance or take effective alternative measures.

OSHA has to date also decided not to promulgate an Emergency Temporary Standard (ETS), which could be formulated within a faster timeframe than a rulemaking, but would establish temporary new mandatory workplace safety obligations and foreground for a permanent rule. The decision has sparked criticism from some, including certain unions, scholars, and politicians.  For example:

  • The AFL-CIO and twenty-two additional unions filed a petition with OSHA to promulgate an infectious disease protection ETS in March, which OSHA denied. A D.C. Circuit panel reviewed the denial and refused to mandate OSHA to act, citing the deference owed to the agency in its response to the pandemic. The unions petitioned for rehearing en banc, and the Court has yet to rule on the petition.
  • The Center for Progressive Reform recommended that OSHA promulgate an ETS and provided a vision for what such a standard should contain. The Center also expressed a desire to see the development of a subsequent permanent standard.
  • Former Assistant Secretary of Labor for Occupational Safety and Health David Michaels offered thoughts in March as to the need of an ETS targeting airborne infectious agents (such as those at the heart of the COVID-19 spread). He referenced the infectious disease standard that had been largely developed by January 2017 but was halted with the new administration’s “deregulatory initiative[s].”
  • Presidential candidate and presumptive Democratic nominee Joe Biden has criticized the lack of an ETS. As a part of his “4-Point Plant for Our Essential Workers,” he “call[ed] on” the Trump Administration to “immediately release and enforce an Emergency Temporary Standard (‘ETS’)” that would also be followed by a permanent standard.
  • A provision within the House version of the proposed HEROES Act (The HEROES Act, Title III: COVID–19 Every Worker Protection Act of 2020, H.R. 6800 §120302(a)-(b), 116th Cong. (2020)) would require OSHA to promulgate an ETS within seven days and a final permanent standard within twenty-four months of the act’s enactment. However, the Senate has yet to debate or vote on this bill.

Virginia has taken the lead at the state level to develop its own COVID-19 ETS, which is currently proceeding through a series of revisions with the Virginia Safety and Health Codes Board before a final standard will be officially adopted.[2]  If approved, the Virginia standard would be enforceable with monetary penalties that track other Virginia Occupational Safety and Health penalties, including a maximum $13,047 fine for “Serious and Other-than-serious” violations and $130,463 fine for “Willful and Repeat” violations.

The substance of the Virginia standard generally follows OSHA’s guidance, such as the Guidance on Preparing Workplaces for COVID-19, grouping work tasks into risk levels and then providing requirements that apply uniformly within and across those levels. Though echoing much of the federal guidance, the most recent draft of the Virginia standard also:

  • Expressly prohibits employees who are “known or suspected to be infected with [the virus causing COVID-19]” from reporting to or remaining at a workplace.[3]
  • Places additional emphasis on appropriate air-handling systems and prescreening of employees performing medium-risk tasks in addition to high-risk tasks.
  • Expressly notes that contact tracing will not be required by the standard.
  • Mandates (rather than suggests) infectious disease preparedness and response plan development for medium-risk tasks with eleven or more employees and for high-risk tasks (but not all risk levels).[4]

Oregon has announced a timeline for promulgating its own temporary and permanent rules, with a goal of adopting the former by September 1, 2020.  Washington adopted in May and revised in July an emergency rule to clarify, for example, that “employers can be subject to a citation and monetary penalties for violations” of the “restrictions and conditions on business under the emergency proclamations.”  It has also passed requirements protecting workers in temporary worker housing.

These state-level efforts are worth watching carefully, as they may provide a model for other states or for future rulemakings at the federal level.

Emily Hooker, a summer associate who is attending the University of Pennsylvania Law School, contributed to this blog post.

 

[1] For more information concerning steps taken by OSHA thus far, see our previous posts: OSHA Coronavirus Requirements and Guidance for Employers, Opening the Doors: Return-to-Workplace Considerations During COVID-19 (OSHA Reinstates Employers’ Obligations to Record Work-Related COVID-19 Cases).

[2] The Board met most recently on July 7, 2020 to discuss the standard and various proposed amendments, but had not yet resolved all proposals and revisions as of the end of the meeting and recessed with plans to continue the discussions at a later date.  A meeting has been scheduled for July 15, 2020.

[3] This new phrasing was adopted at the July 7, 2020 meeting.

[4] A suggested amendment would change this provision to instead cover all risk levels.