The Occupational Safety and Health Administration’s (OSHA) has changed its mind and has decided to issue Emergency Temporary Standards (ETS) that employers will be expected to adhere to regarding COVID-19 in the workplace.
The agency reported on April 26 that it had submitted the draft regulations to the White House Office of Information and Regulatory Affairs (OIRA), which is responsible for reviewing federal agency rules prior to their publication. It is estimated that the ETS will be published no later than June.
Secretary of Labor Marty Walsh was believed to have held up the OSHA standards because the “emergency” they were designed to address no longer exists. Walsh said he suspended the rules’ issuance because the proposed standard did not “reflect the latest scientific analysis of the state of the disease.” It is not known why the change of mind occurred.
On Jan. 21, just one day after President Biden was inaugurated, he ordered OSHA to produce new COVID guidance by the end of January, which it did on Jan. 29. He also ordered it to issue the ETS by March 15, which it failed to accomplish.
As the number of COVID-19 vaccinations have grown—and demonstrated high rates of effectiveness, particularly at preventing serious illness and death—the more OSHA delays putting out the ETS, the harder it will be to justify that an “emergency standard is necessary to protect employees from grave danger,” observes A. Scott Hecker, an attorney with the law firm of Seyfarth Shaw.
According to U.S. government figures, as of April 26, more than 232 million vaccine doses have been administered in this country. More than 54% of the U.S. population who are 18 and older have received at least one dose, over 81% of those who are 65 and older also have received at least one dose, and almost 30% of the entire U.S. population is fully vaccinated.
Beyond being forced to deal with the passage of time and increasing vaccination numbers, OSHA will need to justify its change in position regarding the need for an ETS, Hecker says.
OSHA is part of the Department of Labor (DOL) and last year Trump DOL Secretary Eugene Scalia and OSHA Chief Loren Sweatt had strongly argued that an ETS was not necessary because the agency could enforce its COVID guidances under the General Duty Clause of the Occupational Safety and Health Act.
“The Biden Administration may be unwittingly confirming these assertions by increasingly issuing COVID-related citations under the General Duty Clause of the OSH Act to require employers to mandate, e.g., masking and social distancing,” Hecker points out.
National labor unions, which have been demanding an OSHA ETS, may have unintentionally erected a barrier to the legal standing of any ETS that will be eventually adopted. They already had sued DOL seeking to get the court to order but then lost in federal appeals court because they failed to make the case that the standards were needed.
Another problem is that the new ETS will apply only in 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, including reduction of mask requirements. It also could cause confusion in states that have their own OSHA plans, such as California, which issued its own highly detailed ETS last year.
OSHA also chose to recently unleash a National Emphasis Program regarding stepped-up enforcement efforts nationwide, initially targeting the hospital and healthcare industry. Reports show that OSHA and the FTA campaign in Georgia and Texas have already generated employer citations.
Straight Outta Oakland
If all proceeds to plan and President Biden’s nominee to head OSHA is confirmed by the U.S. Senate, he should be thoroughly versed in California’s workplace safety regulatory scheme. Doug Parker, the current chief occupational safety and health regulator in California, was nominated to serve as the DOL Assistant Secretary for Occupational Safety and Health—the official title of the head of OSHA.
If confirmed he will serve under Labor Secretary Marty Walsh, who in addition to having been mayor of Boston when he was named by President Biden also had served in senior positions in labor unions.
After obtaining his undergraduate degree from James Madison University, Parker then attended the University of Virginia law school, which he graduated from in 1997. (He currently serves on the advisory board of JMU’s College of Arts and Letters.)
In all of the positions he has held throughout his career, Parker “consistently focused on the advancement of three priorities: Democratic Party politics, organized labor, and occupational safety and health,” according to attorneys Robert S. Nichols and Caroline Melo of the law firm of Bracewell LLP.
Prior to attending law school, he served on the staff of Sen. Paul Wellstone (D-MN) and worked for the Democratic National Committee. Following law school, he served as a staff attorney for the United Mine Workers union and then as a partner with Mooney, Green, Baker & Saindon, a Washington, DC, law firm specializing in representing unions.
In 2009, Parker once again changed the focus of his career, this time by joining the occupational safety and health bureaucracy, serving in senior policy positions with DOL’s Mine Safety and Health Administration during the Obama Administration. In 2016, he switched gears again, joining Worksafe Inc., an Oakland, CA-based nonprofit worker safety legal services and advocacy group.
In September 2019, Parker assumed his current regulatory position overseeing Cal/OSHA as an appointee of Gov. Gavin Newsom. Parker also served as an advisor to the Biden transition team following last year’s presidential election.
In his position as head of Cal/OSHA, Parker was a key leader in the 2020 adoption of California’s controversial COVID-19 emergency temporary standard, which business organizations have criticized as overly complicated and unnecessarily burdensome.
The current California standard includes requirements related to ventilation improvements, contact tracing, outbreak procedures and twice-weekly mandatory COVID testing for employees in certain circumstances, and it was unsuccessfully challenged in court by employers’ groups.
Parker could make an immediate impact on federal OSHA’s COVID-19 enforcement efforts, argue attorneys Reilly C. Moore and Susan F. Wiltsie of the Hunton Andrews Kurth law firm. “As of April 5, California issued 203 citations to employers for safety issues related to COVID-19. That compares to only 408 citations across all of federal OSHA as of April 12. California’s per-capita enforcement dwarfs federal efforts.”
Many observers expect federal OSHA to bring back some Obama-era policies, including a renewed focus on anti-retaliation enforcement and publicizing safety violations more strenuously through a “regulation by shaming” approach, Moore and Wiltsie point out.
