Inside OSHA


Employers Urge OSHA To Preempt State COVID Rules In Upcoming ETS

March 15, 2021

Employers are urging OSHA to use its impending emergency temporary standard (ETS) for COVID-19 to standardize the nationwide approach to pandemic protections, by formally overriding state-level ETS rules and executive orders that have created a patchwork of workplace safety requirements against the coronavirus.

“Fed OSHA can, it has the power to, mandate that those standards should be exactly the same,” attorney Eric Conn, a founding partner at the employer law firm Conn Maciel Carey, told Inside OSHA in a recent interview. “Right now, it is a nightmare. . . . Let’s come up with a single consistent requirement that we can all learn and apply everywhere.”

In a Jan. 21 executive order, President Joe Biden directed OSHA to make a decision on whether to craft an ETS, and to issue one if needed, by March 15. But the agency now appears likely to miss that deadline, and Conn said his expectation is that it will instead treat the day as its target to transmit a draft to the White House Office of Management and Budget for review.

Under that version of the process, officials would not formally release a final rule until days or weeks later. And employers are hoping to use the extra time to convince OSHA to adopt at least some of their preferred approaches in the regulation, including a unified nationwide approach.

“It does seem like the intent is a nationwide response to the pandemic, which makes sense to me,” Conn said.

His firm recently outlined that and other employer priorities for a rulemaking in a letter to OSHA where they urge the agency to not only adopt a unified national policy for workplace COVID-19 protections but to make the rule as flexible as possible.

For instance, the letter argues that an ETS should provide a path for recommended worker protections to change in response to updated health guidance, and automatically sunset when the current crisis ends.

“Assuming OSHA promulgates an ETS, it will be designed to address the unique characteristics of transmission of the SARS-CoV-2 virus and will require mitigation strategies and prevention techniques tailored to prevent transmission of this particular coronavirus. Accordingly, the ETS should include a sunset provision triggering automatic expiration based on some designated official status,” which could be the end of the presidential state of emergency or a World Health Organization announcement that the pandemic is over, it says.

The firm also warns the administration against any move to convert the ETS into a permanent infectious-disease standard -- which was a priority for the Obama OSHA but dropped after the 2017 transition -- saying that while such a rule might be appropriate it should not be based on COVID-19 conditions.

“If OSHA wishes to promulgate a broader infectious disease standard to address a broad range of infectious diseases, it should pick up the rulemaking process set aside in 2017, and actively continue that process rather than converting this ETS and attendant permanent rule into such a standard,” the letter says.

ETS Flexibilities

The employer attorneys’ letter also calls for OSHA to include a “grace period” to allow employers to adapt their current COVID-19 protections to the federal standards, noting that it will take time for even well-equipped entities to acquire whatever equipment it requires or implement new administrative controls.

And they urge the agency to include language in the rule that allows employers to follow current Centers for Disease Control and Prevention (CDC) guidance if it conflicts with the regulatory text, holding up Virginia’s first-in-the-nation state standard as a model for that approach.

The letter includes specific model language: “To the extent an employer complies with an applicable recommendation contained in CDC guidelines, whether written in mandatory or non-mandatory terms, to mitigate COVID-19 related hazards addressed by this standard, even if the CDC guidelines conflict with the terms of this standard, the employer's actions shall be considered in compliance with the related terms of this standard.”

It also argues that any rule should account for “the special circumstances of critical infrastructure workers” who have operated under less-stringent CDC guidance as a way to keep operations like vital government functions, utilities and grocery stores operational.

Finally, it calls for OSHA to exempt COVID-19 from injury and illness recordkeeping rules that require employers to keep a “Form 300” log of “work-related” infections -- a requirement that Conn says places a heavy burden on companies to determine whether a particular infection can be traced to the workplace.

“We’re spending so much time on the work-relatedness analysis, and really, who cares? What matters is not that I got it at a Super Bowl party, what matters is that I brought it to the workplace and might spread it,” he told Inside OSHA.

Rather, the firm urges regulators to mandate a separate list of COVID-19 infections among workers, without regard for whether an infection is work-related. “We’re not trying to avoid capturing this data. It’s just that the 300 log is an utterly useless tool for the challenge that we’re facing,” he said. -- David LaRoss (