OSHA Considering Emergency Temporary Standard

By [ Austen Jensen , Evan Armstrong ]
04/29/2021

RILA has been tracking whether the new Biden Administration will order OSHA to propose a nation Emergency Temporary Standard. President Biden stated in an Executive Order that the Department of Labor should make a decision by March 15th on whether to issue the ETS. It was noteworthy that the date passed with no official word from the Department of OSHA and a few weeks ago Secretary Walsh put a “hold” on the emergency standard. However, political pressure from Congressional Democrats and organized labor have reignited the process and a proposed ETS was sent to the Office of Information and Regulatory Affairs (OIRA) earlier this week. OIRA, an office within OMB, is the office in the White House with responsibility for clearing regulations (both proposed and final) before they are published.

This change in posture towards the ETS places two competing narratives together – the Biden Administration trumpeting the success of vaccinations with states reopening versus the DOL arguing there is a “grave danger” and an ETS is “necessary.

OIRA is now scheduling meetings with parties who want to present their views on the ETS. They will not respond to any comments made or engage in a dialog about the ETS, but they will listen to what anyone wants to say. If you're interested in scheduling a meeting, use this webportal (the RIN for the OSHA ETS is RIN:1218-AD36). RILA will be meeting with OIRA on May 7th so please forward any potential info, comments or concerns to us prior to the meeting so we can share.

Unfortunately, we do not know what the ETS says, nor when it will be issued. Once it is issued, it will be in effect and will be considered the proposal for a permanent regulation so there will be a comment period.

Likely Inclusion:

Mask mandate
Social distancing mandate
Screening requirements
Cleaning and sanitation requirements
Requirement for employers to draft and implement written infection control plans

Potentials:

Whether OSHA will include “medical removal” provisions for infected employees (a/k/a paid leave)
How OSHA reconciles its ETS with quickly-changing CDC guidance on vaccinated persons and return to work policies
Whether the agency will tier requirements based on level of industry risk (e.g., stricter requirements for healthcare)

Whether the agency will impose industry-specific additional requirements (like Oregon OSHA did for retail, manufacturers, restaurants, schools, sporting venues, etc.).

For more information about this issue, please contact RILA Vice President of Workforce Evan Armstrong.