New OSHA Standards Are Coming for COVID-19. Better Late Than Never?

Sheila Mulrooney Eldred

May 17, 2021

On his first full day in office, President Joe Biden wasted no time in signaling a long-awaited shift for protecting workers during the pandemic, issuing an executive order that called for the Occupational Safety and Health Administration (OSHA) to enact emergency rules (called an emergency temporary standard or ETS) for the first time since 1983.

Under Trump, OSHA relied on general standards and did not invoke an ETS during the pandemic. Now, the agency is preparing to issue standards — OSHA sent draft standards to the Office of Management and Budget's Office of Information and Regulatory Affairs for review on April 26 — but it's unclear when it will happen.

"OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the US government to get this proposed emergency standard right," said spokeswoman Kimberly Darby, who declined to estimate how long the review will take.

As healthcare unions and workers wait, here's what the rules might cover and why many believe the ETS is still relevant at this point in the pandemic.

What Could Be in the New Standard

OSHA posted updated guidance on protecting workers from COVID-19 in late January, including elements of effective workplace COVID-19 prevention programs and detailing key measures for limiting disease spread.

But the guidance isn't enforceable, and for now, the exact contents of the future ETS are "a pretty closely guarded secret," said James Brudney, JD, a professor at Fordham Law School in New York City and former chief counsel of the US Senate Subcommittee on Labor.

Generally, OSHA looks toward the scientific recommendations of the National Institute for Occupational Safety and Health (NIOSH), a division of the CDC that's responsible for conducting research and making recommendations on how to better protect people doing hazardous work, said Gregory Wagner, MD, a former NIOSH senior advisor now at the Harvard T.H. Chan School of Public Health, Boston, Massachusetts.

"OSHA takes the scientific recommendations of NIOSH and often incorporates them into the standard-setting process," Wagner said, "but they are not obligated to accept the recommendations from CDC."

OSHA could also base its standards on the ones of states such as Virginia, California, and Oregon, which have already issued their own standards. (Each of those states will be required to ensure that their regulations are at least as protective as the new federal rules.)

Healthcare workers and unions will be closely watching for specific requirements, especially related to respiratory protection after the CDC recently acknowledged aerosol inhalation as a major mode of transmission and said that only unvaccinated people have to wear masks in many public places. (In healthcare settings, masks are still required for everyone.)

"It is very important that the CDC further acknowledge the role of aerosol transmission," said former Obama administration Assistant Secretary of Labor David Michaels, PhD, MPH, now at the Milken Institute School of Public Health of George Washington University in Washington, DC. It's also important for OSHA to "encourage employers to examine and improve ventilation systems," he said.

Rules could address the mask issue by authorizing and/or encouraging employers to verify which employees are vaccinated and don't need to wear masks, Brudney said.

"Whether there will be rules that mandate all employers to seek such verification is a closer question," he said. "The federal government as an employer might be mandated to do so, but [the US Department of Labor] (or CDC) may decide that authorization and encouragement are better ways to secure widespread compliance with this workplace health-protection practice."

Some could be looking for strong antiretaliation protections, Brudney notes. There are different standards for whistle-blowing, he explains, as some laws and regulations protect employees who have a good faith belief that safety or health requirements are being violated, some require employees' beliefs to meet a test of objective reasonableness, and others only protect employees if they're correct that a violation has occurred.

The last type "would be chilling," he said. The first "is what you need with COVID, because as scientific consensus evolves in light of new information, what someone might think was reasonable 6 weeks ago might not seem so reasonable today."

Also, OSHA doesn't provide a way for individuals to pursue lawsuits themselves, Brudney points out. It is possible that new rules could force stronger internal governance within workplaces, for example by ensuring that employers establish health and safety committees that include worker members. These committees could report on compliance with PPE or other requirements such as available handwashing and disinfectant facilities. Such committees also could offer protection for workers who refuse to perform certain work when employers do not provide the required PPE or sanitary conditions.

Why a Standard Is Still Needed

For the US's largest labor union for registered nurses, the pending new rules are overdue but still not too late to be helpful.

"A strong ETS will save lives, both inside and outside our workplaces," National Nurses United President Deborah Burger, RN, said in an April 26 press release. "It is urgent that the Biden Administration complete its regulatory review with all deliberate speed. Lives hang in the balance."

Part of the delay could be the near certainty that the standards will be challenged in courts, experts said. Businesses and trade associations have sued California's OSHA office over its COVID-19 standards, and most of the standards issued in the '70s and '80s were stymied in court. But some say that shouldn't be a holdup.

"Lawsuits against health standards that aren't purely advisory pretty much come with the territory," Brudney said. "If the agency has done solid prep work, including reliance on its own scientific research and external studies, it should just be prepared to let its lawyers do their job."

While it may seem late, putting temporary standards in place now would allow for permanent standards by the end of the year. "Almost every public health expert is saying this is going to be with us for quite some time, so having a meaningful workplace standard that could carry you forward would be quite important," Brudney said.

Having standards "will make enforcement much more straightforward, and OSHA will be able to issue citations more easily and do it in a way that encourages others to follow the law," Michaels said. Standards also have an impact even when those who break the rules aren't punished, he said, as many employers want to be law-abiding.

Even though infection rates are slowing down as more people get vaccinated, more people are going back to work and need protections as society reopens. With "workplaces still driving transmission, the nation's workers desperately need more protection from this virus," Michaels said. "This is the most significant worker safety crisis since the founding of OSHA; it's certainly deserving of emergency standards."

Sheila Eldred is a freelance health journalist in Minneapolis. Find her on Twitter @MilepostMedia.

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