One Month Has Passed Since the Deadline for an Emergency Workplace Safety Standard for COVID-19

Exactly one month has passed since the deadline to decide on a federal safety standard to protect workers during the novel coronavirus pandemic, but the Biden administration hasn’t finalized anything yet, to the dismay of public health advocates and experts. 

President Biden issued an executive order on January 21 directing the Occupational Safety and Health Administration, a division of the Labor Department, to revise its coronavirus guidance and take other actions to protect workers from the ongoing pandemic. This included considering whether emergency temporary standards for COVID-19 are needed and if so, issuing them by March 15. This came after OSHA was criticized heavily during the Trump administration for not doing enough to protect workers from COVID-19 and issuing “miniscule” fines. 

“We are now one month past the deadline for an #OSHA COVID-19 standard,” Jordan Barab, who served as OSHA deputy assistant secretary from 2009-2017, tweeted on Thursday. “Numbers are rising, workers are still getting infected and dying.” 

Since late January, the agency has issued updated COVID workplace guidance, launched a “national emphasis program” to focus on companies that are putting workers at risk for contracting the coronavirus as well as retaliating against them for filing complaints, and updated its interim enforcement response plan to prioritize doing on-site inspections of workplaces when feasible. However, the agency has yet to finalize anything on the emergency temporary standards. 

Marty Walsh was confirmed as Labor Secretary on March 22 and has taken on a review of the process. 

“Secretary Walsh reviewed the materials, and determined that they should be updated to reflect the latest scientific analysis of the state of the disease,” a Labor Department spokesperson told Government Executive in a statement on Wednesday. “He has ordered a rapid update based on [Centers for Disease Control and Prevention] analysis and the latest information regarding the state of vaccinations and the variants. He believes this is the best way to proceed.” (Politico and Bloomberg reported on this update last week, but the spokesperson said this statement still applies). 

The Biden team explicitly called for the issuance of a standard during the campaign. 

“The OSHA law is clear: workers have the right to be safe at work,” Dr. David Michaels, former OSHA administrator from 2009 to 2017 who served on Biden’s transition COVID advisory board, tweeted on Wednesday. “To protect them and slow the surging pandemic, the nation needs the OSHA ETS.” In another tweet earlier this week, Michaels said that the standard is needed “to help ensure cases in the rest of the country don't follow Michigan's dangerous surge.” 

Work safety advocates issued a joint statement on April 7 calling on the administration to take action. 

“We know that workers still face the risk of COVID-19 infections in their workplaces, and we know that these infections can spread to neighborhoods, families and communities,” said Jessica Martinez, co-executive director of the National Council for Occupational Safety and Health. “A mandatory safety standard, requiring a COVID-19 prevention plan that involves workers, is essential to controlling this pandemic and protecting American workers and families.” 

Debbie Berkowitz, worker safety and health program director at the National Employment Law Project, noted, “Virginia and California have already issued state-level standards that are working.” She said the standard is needed to protect essential workers who are “disproportionately workers of color.” 

The Government Accountability Office noted in a report published in February that OSHA hasn’t used its authority to issue an emergency temporary standard since 1983. 

Having such a standard “could be of importance during the pandemic as enforceable criteria because under the [1970 Occupational Safety and Health] Act’s General Duty Clause, violations are rarely issued,”  said the watchdog. The clause applies in situations without specific standards. “From Feb. 1, 2020 to October 26, 2020, OSHA has issued 295 violations for 176 COVID-19 related inspections and only three General Duty Clause violations to three establishments.” 

There has been some opposition to a potential standard. 

Reps. Virginia Foxx, R-N.C., ranking member of the House Education and Labor Committee, and Fred Keller, R-Pa., ranking member of the panel’s Subcommittee on Workforce Protections, wrote to the agency in late February saying it should solicit feedback from business owners and their employees first. 

They were also worried about a “new, top-down federal regulation a full year into the pandemic,” as the vaccine campaign is underway. The lawmakers added that issuing the standard would “reverse the Trump administration’s effective policy and ignore the substantial efforts and investments employers and employees have successfully made, based on science-backed guidelines, to keep their workplaces safe.”

OSHA officials during the Trump administration justified their decision not to issue a standard by saying that documenting compliance would deter employers from doing their work during the pandemic and that they had preexisting standards to use, GAO reported. 

In a separate but related matter, the Office of Management and Budget said on Tuesday the Biden administration supports the passage of a bipartisan bill that would require OSHA to develop standards to protect health care and social service workers from workplace violence. 

“In 2018, the Bureau of Labor Statistics reported that health care and social service workers were nearly five times as likely to suffer a serious workplace violence injury than workers in other sectors, and that health care workers accounted for 73% of such injuries,” OMB said. “This burdens a stretched health care workforce that has been severely impacted by the COVID-19 pandemic.” So far the bill has just been referred to a House committee. 

The White House announced on April 9 that Biden intends to nominate Doug Parker, chief of the California Division of Occupational Safety and Health, to lead OSHA. Parker also served on the agency review team for the Labor Department during the transition.