Where Is OSHA's Covid-19 ETS? No Where The Ides Of March

• Published date: 03 April 2021
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Health & Safety, Employment and Workforce Wellbeing
• Law Firm: Jenner & Block
• Author: Ms 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 USC § 655(c).

March 15, 2021 came and went; no ETS was issued. As of this writing, OSHA has not made a public statement as to why it did not issue an ETS on March 15, or the agency's considerations and future plans regarding an ETS. Why might OSHA have chosen not to act now? What has OSHA done instead? What ETS might be on the horizon?

Why Might OSHA Have Decided Not to Issue an ETS Now?

There is considerable legal risk that a COVID-19 ETS will not hold up in court. OSHA has not successfully issued an ETS since 1978. Its last attempt to issue an ETS would have regulated asbestos exposure and was invalidated by the US Court of Appeals in 1984. In Asbestos Info. Ass'n v. OSHA, 727 F.2d 415 (5th Cir. 1984), the court rejected the ETS because OSHA did not sufficiently support its conclusion of a "grave danger," i.e., that 80 people would die in the next six months without the ETS and that OSHA could not show that an asbestos ETS was "necessary" given its existing respiratory standard.

As an additional legal hurdle, OSHA, in the last administration, has already gone on record that an ETS is unnecessary, and won that position in federal court. On June 11, 2020, the US Court of Appeals for the D.C. Circuit denied the AFL-CIO's petition for a writ of mandamus to compel OSHA to issue an ETS for Infectious Diseases. The three-judge panel found that "OSHA reasonably determined that an ETS is not necessary at this time" given the "unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, see 29 U.S.C. § 654(a)." The panel held that "OSHA's decision not to issue an ETS is entitled to considerable deference."

Moreover, supporting the "grave danger" element for a COVID-19 ETS is challenging for OSHA, especially because the March 15 deadline gave it only two months to assemble the data and proof necessary. Further compounding the timing challenge, there are data gaps from the prior Administration, making it difficult to prove that any particular regulatory action would eliminate the grave danger. In addition, with vaccines becoming increasingly available predicting how many workers would be protected from "grave danger" in the near future confounds easy statistical prediction. Regarding the "necessity" element, the Department of Labor Office of Inspector...