OSHA Under Deadline For A Nationwide Covid 19 Workplace Safety Rule: Four States' Existing Laws And New Federal Guidance And Orders Foretell The Future

Published date01 April 2021
Subject MatterEmployment and HR, Coronavirus (COVID-19), Health & Safety, Employment and Workforce Wellbeing
Law FirmJenner & Block
AuthorMs Gabrielle Sigel

On his first full day in office, President Biden issued an Executive Order on Protecting Worker Health and Safety, which required OSHA to "consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary," and if so, to issue such emergency temporary standards (ETS) by March 15, 2021. Executive Order 13999, ' 2(b) (Jan. 21, 2021), 86 FR 7211 (Jan. 26, 2021). An ETS, which skips the initial notice and comment process before it is in effect, can be issued pursuant to Section 6(c) of the OSH Act if OSHA determines that employees are exposed to "grave danger" and that an emergency standard is necessary to protect them from the grave danger. 29 U.S.C. ' 655(c).

Putting aside that OSHA has not successfully issued an ETS since 1978, including that the last attempt to issue an ETS, regulating asbestos exposure, was invalidated by the US Court of Appeals in 1984,1 OSHA now has several models for a COVID-19 ETS from which it may draw. Specifically, California, Michigan, Oregon, and Virginia are among the 22 states and territories that administer and enforce their own state-plan OSHA, rather than rely solely on federal standards and enforcement.2 These four states have developed their own COVID-19 safety regulations that apply to most, if not all, workplaces in their respective states, and have both distinctive features and commonalities. Employers would be well-advised to be aware of each of the states' specific standards, not only to comply with regulatory requirements in that state, but to consider whether their workplace is ready for potential, nationwide regulations which may incorporate elements of these states' approaches.

With OSHA under a Presidential deadline to issue a nationwide COVID-19 safety regulation, we review the current status of OSHA guidance; describe the basic elements of the four states' regulations; and look at recent federal orders by other agencies to anticipate what employers nationwide may soon be facing.

US OSHA: COVID-19 Regulation and Guidance in the Prior Administration

US OSHA currently has several well-established regulations that apply to aspects of workplace protection that also apply to certain workplaces operating during the pandemic. For example, OSHA's PPE and respiratory standards would apply particularly to work in hospitals and those in direct contact with people or bodies known to be infected by COVID-19. See, e.g., 29 CFR 1910.132, 1910.133, 1910.134. OSHA's illness recordkeeping standard applies to workplaces otherwise required to do that recordkeeping (29 CFR 1904.2(a)), and all workplaces are required to report to OSHA work-related cases that result in hospitalization or death within 24 hours of a workplace exposure (see fn 9). The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act, 29 USC 654(a)(1), requires each employer to furnish to each worker "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." 29 U.S.C. ' 654(a)(1). Yet, the General Duty Clause does not provide clear direction on what an employer must do at the workplace, and enforcement by OSHA during the pandemic under the General Duty Clause can be difficult in all but the most egregious cases.

On its COVID-19 resource webpage, OSHA essentially recognizes that it does not have a comprehensive standard for working during the pandemic, as the state-plan states' COVID-19 regulations do. OSHA points to its own bloodborne pathogen standard and California's ATD standard as either provisions that "offer a framework that may help control some sources of the virus," or "provid[ing] useful guidance for protecting [non-healthcare] workers exposed to SARS-CoV-2."3 OSHA has responded to previous threats of airborne disease and viral transmission by issuing specific guidance, as in the case of the Zika virus, avian flu, and the H1N1 virus. To state the obvious, SARS-CoV-2 is unique in US workplaces for many reasons, including the length of time it has been a threat, its asymptomatic transmission, and the sheer number of cases of sickness and death.

On March 9, 2020, OSHA issued its "Guidance on Preparing Workplaces for COVID-19," (Preparing Guidance) and on June 17, 2020, OSHA issued its "Guidance on Returning to Work," (Reopening Guidance) (both currently under review by...

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