Published
June 15, 2023
Most people are pleased to see the COVID health emergency in the rearview mirror, including the administration that ended the public health emergency on May 11. However, there’s one agency that believes we’re still at the outset of the COVID pandemic.
Back on June 21, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) that required healthcare facilities (including clinics inside workplaces) where there could be potential exposure to people infected with the coronavirus to take certain actions to protect the healthcare workers. An ETS is a special type of rulemaking OSHA may issue if the agency can show that employees are at risk of “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and “that such an emergency standard is necessary to protect employees…”
Under the Occupational Safety and Health Act, when OSHA issues an ETS, it goes into effect upon issuance and, at the same time, is considered a proposed regulation open for comment. The statute is explicit that OSHA “shall promulgate a standard under this paragraph no later than six months after publication of the emergency standard (emphasis added).” That six-month window closed on December 21, 2021, and on December 27 OSHA appropriately announced that the ETS would no longer be enforced.
This is where things go sideways. On March 22, 2022, OSHA reopened the comment process to take input on what a finalized version of the COVID healthcare ETS should say. On April 21, 2022, the U.S. Chamber submitted comments emphasizing that the statute makes clear OSHA can no longer use the ETS as a vehicle for a final regulation. If OSHA wants to issue a regulation reflecting the requirements of the ETS, it must go through the full rulemaking procedures that the ETS allowed them to skip.
Notwithstanding the explicit language of the statute, OSHA has moved forward with a finalized version of the ETS. It was submitted to the Office of Information and Regulatory Affairs (the office within the White House that oversees all regulations) for review back in December 2022. The fact that it is still there raises some possibilities that the language of the OSH Act may finally be having an impact. However, what we know is that the nurses’ union wants this bright line standard to use against hospitals and other health care providers, instead of having to rely on the general duty clause which makes violations harder to prove. As long as the nurses’ union wants this, there is always a chance that the statutory language won’t matter.
If OSHA does finalize the ETS, it will create a significant precedent. It will mean that direct language in the statute can be ignored with impunity, and OSHA is free to do whatever it wants and issue whatever standards it desires. This would have implications well beyond just OSHA, so employers ought to be aware of this rulemaking and watch to see how it is resolved.
About the authors
Marc Freedman
Marc Freedman is vice president of workplace policy at the U.S. Chamber of Commerce. He develops and advocates the Chamber’s response to OSHA matters; FLSA issues such as overtime, minimum wage, and independent contractors; paid leave issues; EEOC, and other labor and workplace issues.
