Introduction
With every new Administration comes a new approach to regulating workplace safety. The unprecedented COVID-19 pandemic has put added pressure on the Biden Administration to urge action by the relevant agencies. The resultant action could create new standards for employers under OSHA as early as March 15, 2021 in the form of an emergency temporary standard (“ETS”). Here is what you need to know:
Executive Order
On January 21, 2021, President Biden issued an Executive Order titled “Protecting Worker Health and Safety” (“the Order”).1 The Order directed that the Occupational Safety and Health Administration (OSHA) “issue, within 2 weeks of the date of [the Order] . . . revised guidance to employers on workplace safety during the COVID-19 pandemic.” The Order further directed OSHA determine whether an emergency temporary standard (“ETS”) regarding COVID-19 workplace safety would be necessary, and if so, to issue such an ETS by March 15, 2021.
On January 29, 2021, the U.S. Department of Labor announced that OSHA issued stronger guidance relating to preventing COVID-19 exposure in the workplace.2 The updated guidance included heightened recommendations, including that employers:
· Conduct a hazard assessment;
· Identify control measures to limit the spread of the virus;
· Adopt policies for employee absences that don’t punish workers as a way to encourage potentially infected workers to remain home;
· Ensure that coronavirus policies and procedures are communicated to both English and non-English speaking workers; and
· Implement protections from retaliation for workers who raise coronavirus-related concerns. Id.
Importantly, OSHA acknowledged that the new guidance is “not a standard or regulation, and it creates no new legal obligations.” Id. Regarding a binding rule, newly appointed Principal Deputy Assistant Secretary of Labor for OSHA, Jim Frederick, stated in a virtual news conference on January 29, 2021, that he was unsure whether OSHA would issue an ETS regarding COVID-19 exposure prevention, but that it’s “something [OSHA is] deliberating about and [will] be working on.”3
What is an ETS?
Emergency Temporary Standards, ETS, are promulgated in accordance with Section 6 of the OSH Act (“the Act”). ETS allow OSHA to promulgate a rule without the usual notice, comment, and hearing requirements in narrow, emergency circumstances. 29 U.S.C. § 655(c). The Act provides that ETS can be issued, and take immediate effect upon publication in the Federal Register, if the Secretary of Labor determines:
(A) employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and
(B) such emergency standard is necessary to protect employees from such danger.
Id. Once an ETS is issued, it remains effective until a rule is promulgated in accordance with standard procedure, for which proceedings the ETS will serve as the proposed rule. Id. The non-emergency, permanent rule must be promulgated within six (6) months of the publication of the ETS. Id.
In addition to the federal OSHA standards, 28 out of 50 states have chosen to self-implement OSHA-approved “State Plans” relating to limiting the spread of COVID-19 in the workplace, which must be “at least as effective in providing safe and healthful employment . . . as the [federal OSHA] standards.” 29 U.S.C § 667(c)(2).4 Ordinarily, states that have elected to implement State Plans have six (6) months to adopt a permanent rule. In the instance of an ETS, however, states with State Plans have thirty (30) days from the effective date to adopt the emergency standard. 29 C.F.R. § 1953.5.
To Whom Would the ETS Apply?
OSHA regulations apply to most private employers and their workers, and also some public sector employers.5 Businesses with fewer than ten (10) employees, and businesses that meet certain other enumerated qualifications for full or partial exemption from OSHA standards, may not be required to maintain injury and illness records and may be exempt from regular OSHA inspections.6 Certain organizations and employees are also fully exempt from OSHA standards.
If your business is in a state that has adopted a “State Plan,” you may be subject to different qualifications and/or exemptions for regulation under that state’s OSH standards.
When and How Does an ETS Bind Employers?
An ETS becomes effective immediately upon publication in the Federal Register. 29 U.S.C. § 655(c). In the event an employer cannot immediately comply with a new rule by the effective date, however, that employer may apply for a temporary or permanent variance. Id. § 655(d).7 Such a request, however, must also be accompanied by notice to employees regarding the request for a variance and an opportunity to participate in the hearing. Id. For states with State Plans, the employer should apply to the state OSH entity for any such request. As a note, OSHA has issued several industry-specific memoranda regarding discretion in enforcing new COVID-19 prevention regulations. Generally, “OSHA is providing enforcement flexibilities for specific provisions of certain standards and requirements . . . .”8
Next Steps Regarding OSHA Workplace COVID-19 Requirements
The January 21, 2021 Executive Order directed that OSHA decide by March 15, 2021, whether an ETS regarding updated COVID-19 prevention regulations is necessary. And if so, the Order directed that OSHA issue an ETS by that same date.
If OSHA does issue an ETS, the issuance will start the clock on formal rulemaking for a permanent rule, based upon the ETS, which must be issued within six (6) months. This expedited timeline will be difficult in light of the arduous formal rulemaking process, including such items as (1) notice of intent and request for information and interviews; (2) development of a proposed standard; (3) publication of the proposed standard; (4) analyzing submitted comments; (5) developing the final rule; and (5) publication of the final rule. 29 U.S.C. § 655(b). While some of these steps will be completed as a matter of course upon the issuance of an ETS (i.e. the development and publication of the proposed standard), the public notice, comment, and hearing requirements ordinarily consume several months’ time.9
Employers should not anticipate a permanent rule earlier than six months, but they can at least reference the ETS (if issued) as an indication of the permanent measures they are required to implement with regard to COVID-19 workplace safety. Between now and March 15, 2021, employers should closely monitor OSHA communications and anticipate the need to move quickly to implement emergency measures.
Who Can Answer My Questions?
The Rudnicki Firm continues to monitor these developments and will be available employers for questions and guidance upon OSHA’s issuance of an Emergency Temporary Standard.
With every new Administration comes a new approach to regulating workplace safety. The unprecedented COVID-19 pandemic has put added pressure on the Biden Administration to urge action by the relevant agencies. The resultant action could create new standards for employers under OSHA as early as March 15, 2021 in the form of an emergency temporary standard (“ETS”). Here is what you need to know:
Executive Order
On January 21, 2021, President Biden issued an Executive Order titled “Protecting Worker Health and Safety” (“the Order”).1 The Order directed that the Occupational Safety and Health Administration (OSHA) “issue, within 2 weeks of the date of [the Order] . . . revised guidance to employers on workplace safety during the COVID-19 pandemic.” The Order further directed OSHA determine whether an emergency temporary standard (“ETS”) regarding COVID-19 workplace safety would be necessary, and if so, to issue such an ETS by March 15, 2021.
On January 29, 2021, the U.S. Department of Labor announced that OSHA issued stronger guidance relating to preventing COVID-19 exposure in the workplace.2 The updated guidance included heightened recommendations, including that employers:
· Conduct a hazard assessment;
· Identify control measures to limit the spread of the virus;
· Adopt policies for employee absences that don’t punish workers as a way to encourage potentially infected workers to remain home;
· Ensure that coronavirus policies and procedures are communicated to both English and non-English speaking workers; and
· Implement protections from retaliation for workers who raise coronavirus-related concerns. Id.
Importantly, OSHA acknowledged that the new guidance is “not a standard or regulation, and it creates no new legal obligations.” Id. Regarding a binding rule, newly appointed Principal Deputy Assistant Secretary of Labor for OSHA, Jim Frederick, stated in a virtual news conference on January 29, 2021, that he was unsure whether OSHA would issue an ETS regarding COVID-19 exposure prevention, but that it’s “something [OSHA is] deliberating about and [will] be working on.”3
What is an ETS?
Emergency Temporary Standards, ETS, are promulgated in accordance with Section 6 of the OSH Act (“the Act”). ETS allow OSHA to promulgate a rule without the usual notice, comment, and hearing requirements in narrow, emergency circumstances. 29 U.S.C. § 655(c). The Act provides that ETS can be issued, and take immediate effect upon publication in the Federal Register, if the Secretary of Labor determines:
(A) employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and
(B) such emergency standard is necessary to protect employees from such danger.
Id. Once an ETS is issued, it remains effective until a rule is promulgated in accordance with standard procedure, for which proceedings the ETS will serve as the proposed rule. Id. The non-emergency, permanent rule must be promulgated within six (6) months of the publication of the ETS. Id.
In addition to the federal OSHA standards, 28 out of 50 states have chosen to self-implement OSHA-approved “State Plans” relating to limiting the spread of COVID-19 in the workplace, which must be “at least as effective in providing safe and healthful employment . . . as the [federal OSHA] standards.” 29 U.S.C § 667(c)(2).4 Ordinarily, states that have elected to implement State Plans have six (6) months to adopt a permanent rule. In the instance of an ETS, however, states with State Plans have thirty (30) days from the effective date to adopt the emergency standard. 29 C.F.R. § 1953.5.
To Whom Would the ETS Apply?
OSHA regulations apply to most private employers and their workers, and also some public sector employers.5 Businesses with fewer than ten (10) employees, and businesses that meet certain other enumerated qualifications for full or partial exemption from OSHA standards, may not be required to maintain injury and illness records and may be exempt from regular OSHA inspections.6 Certain organizations and employees are also fully exempt from OSHA standards.
If your business is in a state that has adopted a “State Plan,” you may be subject to different qualifications and/or exemptions for regulation under that state’s OSH standards.
When and How Does an ETS Bind Employers?
An ETS becomes effective immediately upon publication in the Federal Register. 29 U.S.C. § 655(c). In the event an employer cannot immediately comply with a new rule by the effective date, however, that employer may apply for a temporary or permanent variance. Id. § 655(d).7 Such a request, however, must also be accompanied by notice to employees regarding the request for a variance and an opportunity to participate in the hearing. Id. For states with State Plans, the employer should apply to the state OSH entity for any such request. As a note, OSHA has issued several industry-specific memoranda regarding discretion in enforcing new COVID-19 prevention regulations. Generally, “OSHA is providing enforcement flexibilities for specific provisions of certain standards and requirements . . . .”8
Next Steps Regarding OSHA Workplace COVID-19 Requirements
The January 21, 2021 Executive Order directed that OSHA decide by March 15, 2021, whether an ETS regarding updated COVID-19 prevention regulations is necessary. And if so, the Order directed that OSHA issue an ETS by that same date.
If OSHA does issue an ETS, the issuance will start the clock on formal rulemaking for a permanent rule, based upon the ETS, which must be issued within six (6) months. This expedited timeline will be difficult in light of the arduous formal rulemaking process, including such items as (1) notice of intent and request for information and interviews; (2) development of a proposed standard; (3) publication of the proposed standard; (4) analyzing submitted comments; (5) developing the final rule; and (5) publication of the final rule. 29 U.S.C. § 655(b). While some of these steps will be completed as a matter of course upon the issuance of an ETS (i.e. the development and publication of the proposed standard), the public notice, comment, and hearing requirements ordinarily consume several months’ time.9
Employers should not anticipate a permanent rule earlier than six months, but they can at least reference the ETS (if issued) as an indication of the permanent measures they are required to implement with regard to COVID-19 workplace safety. Between now and March 15, 2021, employers should closely monitor OSHA communications and anticipate the need to move quickly to implement emergency measures.
Who Can Answer My Questions?
The Rudnicki Firm continues to monitor these developments and will be available employers for questions and guidance upon OSHA’s issuance of an Emergency Temporary Standard.
1 Executive Order on Protecting Worker Health and Safety, White House, January 21, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/executive-order-protecting-worker-health-and-safety/.
2 US Department of Labor issues stronger workplace guidance on coronavirus, OSHA National News Release, U.S. Dep’t Labor, January 29, 2021, https://www.osha.gov/news/newsreleases/national/01292021-0.
3 The ‘first step:’ OSHA updates COVID-19 guidelines as Biden administration focuses on worker safety, Safety & Health Magazine, February 21, 2021, https://www.safetyandhealthmagazine.com/articles/20798-the-first-step-osha-updates-covid-19-guidelines-as-biden-administration-focuses-on-worker-safety.
4 For a complete list of states opting to implement self-regulated “State Plans,” please see the list provided on the OSHA website. U.S. Dep’t of Labor, OSHA, State Plans, Frequently Asked Questions, “What is an OSHA-Approved State Plan?”, https://www.osha.gov/stateplans/faqs.
5 U.S. Dep’t of Labor, OSHA, Help for Employers, “Am I covered by OSHA?”, https://www.osha.gov/employers#:~:text=OSHA%20covers%20most%20private
%20sector,an%20OSHA%2Dapproved%20state%20program.
6 Id., Recordingkeeping, “OSHA’s Recordkeeping Rule,” https://www.osha.gov/recordkeeping/2014.
7 See also Id., Law and Regulations, “OSHA Standards Development,” https://www.osha.gov/laws-regs/standards-development.
8 Id., COVID-19, “Regulations,” https://www.osha.gov/coronavirus/standards.
9 Richard Fairfax, On Safety: An OSHA emergency temporary standard for COVID-19?, Safety & Health Magazine, February 1, 2021, https://www.safetyandhealthmagazine.com/articles/20797-an-osha-emergency-temporary-standard-for-covid-19-is-it-necessary (stating that formal rulemaking ordinarily takes between 53 months to 138 months).
2 US Department of Labor issues stronger workplace guidance on coronavirus, OSHA National News Release, U.S. Dep’t Labor, January 29, 2021, https://www.osha.gov/news/newsreleases/national/01292021-0.
3 The ‘first step:’ OSHA updates COVID-19 guidelines as Biden administration focuses on worker safety, Safety & Health Magazine, February 21, 2021, https://www.safetyandhealthmagazine.com/articles/20798-the-first-step-osha-updates-covid-19-guidelines-as-biden-administration-focuses-on-worker-safety.
4 For a complete list of states opting to implement self-regulated “State Plans,” please see the list provided on the OSHA website. U.S. Dep’t of Labor, OSHA, State Plans, Frequently Asked Questions, “What is an OSHA-Approved State Plan?”, https://www.osha.gov/stateplans/faqs.
5 U.S. Dep’t of Labor, OSHA, Help for Employers, “Am I covered by OSHA?”, https://www.osha.gov/employers#:~:text=OSHA%20covers%20most%20private
%20sector,an%20OSHA%2Dapproved%20state%20program.
6 Id., Recordingkeeping, “OSHA’s Recordkeeping Rule,” https://www.osha.gov/recordkeeping/2014.
7 See also Id., Law and Regulations, “OSHA Standards Development,” https://www.osha.gov/laws-regs/standards-development.
8 Id., COVID-19, “Regulations,” https://www.osha.gov/coronavirus/standards.
9 Richard Fairfax, On Safety: An OSHA emergency temporary standard for COVID-19?, Safety & Health Magazine, February 1, 2021, https://www.safetyandhealthmagazine.com/articles/20797-an-osha-emergency-temporary-standard-for-covid-19-is-it-necessary (stating that formal rulemaking ordinarily takes between 53 months to 138 months).