Inside OSHA


Attorney Warns Parker Could Tighten COVID-19 Rule After Confirmation

July 23, 2021

Incoming OSHA chief Doug Parker could seek to tighten the agency’s COVID-19 emergency temporary standard (ETS) following his expected confirmation, an employer attorney said during a July 22 webinar, based on his record of strict regulation as California’s top safety official and the spike in infections due to the virus’s “Delta” variant.

During the employer-focused law firm Conn Maciel Carey’s July 22 “mid-year review of OSHA developments,” attorney Eric Conn predicted that the Senate will confirm Parker as the agency’s next head as soon as August, and that once in office he could reconsider the decision to limit the COVID-19 ETS to the healthcare sector only rather than all industries as union and safety groups sought.

“With Doug Parker confirmed, I wouldn’t be terribly surprised to see the agency revisit its decision to issue a narrow, healthcare-industry-only rule,” Conn said. He added that Parker appears to be the longest-pending Labor Department nominee after the Senate confirmed Deputy Secretary Julie Su on July 13, and thus could come up for a vote in the near future.

Parker has been the head of the California Division of Occupational Safety and Health (Cal/OSHA) since 2019 and is now awaiting a Senate floor vote as head of its federal counterpart, after his nomination cleared the Senate labor committee on June 16. Two of the panel’s Republicans joined all 11 of its Democrats to support him in that vote, all but guaranteeing his confirmation in the 50-50 upper chamber.

Conn said on the July 22 webcast that Parker’s Cal/OSHA tenure has been aggressive on several fronts, but especially COVID-19. Employers have assailed the state ETS as both overbroad and too slow to wind down in response to the widespread availability of vaccines.

And since infections nationwide have risen in recent weeks thanks to the spread of the more-contagious Delta coronavirus variant, he added, OSHA under Parker could find that conditions have changed since it issued the ETS on June 10, to the point where a “grave danger” now exists to workers in all sectors rather than only healthcare.

“Cal/OSHA’s standard was the most onerous of any that we’ve seen. . . . We know what his position is on this, so who knows what will happen if he is confirmed while we’re still battling the Delta variant,” Conn said.

By contrast, Conn praised OSHA’s acting head, Deputy Assistant Labor Secretary Jim Frederick, a former United Steelworkers (USW) safety official who he said has been friendlier to employers than stakeholders initially expected -- possibly because he worked as “essentially a management-side safety consultant” between leaving the union and joining OSHA -- and appears to have helped narrow the ETS to the healthcare sector.

"Where there was this big push to have a broad, all-industry, all-employer COVID-19 regulation, we ended up with something narrower than that. No doubt with Jim on the senior leadership of OSHA . . . [he] probably had a role in that decision, so it’s interesting” Conn said. “Somebody who probably would have taken a different approach and pushed harder for that broad, all-industry, all-employer COVID-19 rule is Doug Parker.”

New Priorities

But Conn and other speakers at the event said that even if Parker makes no move to rewrite the ETS, his eventual confirmation is still likely to trigger more stringent action at OSHA in other respects. For instance, he said enforcement -- already on the upswing during the Biden administration -- is likely to accelerate even more.

“I would expect to see a ton of ETS-related citations being issued,” he said.

Attorney Amanda Strainis-Walker said the agency is likely to resume an Obama-era push to reform the process safety management (PSM) standard that sets requirements for facilities to minimize risks of “catastrophic releases of toxic, reactive, flammable, or explosive chemicals,” in addition to its already-announced plan for a heat illness standard.

She also said that OSHA could end up rewriting the ETS regardless of Parker’s priorities, if federal courts side with unions in their pending suit claiming the healthcare-only standard is too narrow.

“OSHA might not be vigorously defending these legal challenges -- that might result in a broader scope of the ETS,” she said. -- David LaRoss (