COVID-19, Regulatory Developments

President Biden Orders OSHA to Take Action on COVID-19

On January 21, President Joe Biden issued an Executive Order (EO) directing the Occupational Safety and Health Administration (OSHA) to issue updated employer guidance within 2 weeks on protecting workers from COVID-19. The EO also instructed the agency to consider establishing a COVID-19 emergency temporary standard (ETS) by March 15. It also ordered the Mine Safety and Health Administration to consider establishing an ETS for coal and metal or nonmetal mines.

COVID-19 PPE, OSHA infectious disease standards

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The EO accompanied a 200-page National Strategy for the COVID-19 Response and Pandemic Preparedness that also included an EO requiring mask-wearing at airports and on commercial aircraft; public transit; public vessels, including ferries; and trains.

A separate EO concerning the public health supply chain invoked the Defense Production Act for acquiring stockpiles of pandemic supplies, including personal protective equipment (PPE). Another EO requires mask-wearing among federal employees.

The EO on protecting worker safety and health also instructed OSHA to review its enforcement activities related to workplace COVID-19 exposures and launch a national enforcement effort focused on violations that place the greatest numbers of workers at risk for COVID-19 infection.

The order further instructed OSHA to coordinate with states with and without state occupational safety and health programs and federal agencies to ensure public sector workers are protected from COVID-19 exposures. Federal OSHA’s purview only includes private sector workers.

Health and safety advocates expressed the view that only a federal standard could clarify employers’ obligations to protect workers from COVID-19 exposures.

“The issue with the current guidance is that it’s difficult to find and it’s not enforceable,” Jane Terry, the National Safety Council’s (NSC) vice president for government affairs, told BLR®.

Employers with facilities throughout the country need a consistent approach to protect their employees regardless of where they’re located, according to Terry. A federal ETS would provide employers with clarity about what protections they must have in place.

“They need consistency and they want to make sure they’re doing the same thing for their employees, providing that same level of safety for employees whether they’re in Florida, New Mexico, Montana, or wherever they may be.”

On June 11, the NSC called on OSHA to issue a federal ETS.

Terry said any federal standard should include requirements for risk assessments, face coverings and social distancing, hand-washing protocols, cleaning and sanitation, and using the hierarchy of controls (elimination, substitution, engineering controls, administrative controls, and PPE) to protect workers.

A standard should require employers to use scheduling to control levels of occupancy in their facilities, ensuring that people are not congregating in work spaces. The standard also should require employers to develop and implement plans for responding to COVID-19 cases and positive test results, Terry said.

Employers also need to stay informed of new guidance or recommendations from the Centers for Disease Control and Prevention (CDC), according to Terry. “What were best practices a few months ago may have been updated.”

The AIHA (formerly the American Industrial Hygiene Association) agreed employers need clear communications about what precautions to take.

“Reaching and effectively communicating with essential workers about how to protect themselves, their coworkers, loved ones, and communities from COVID-19 are among the greatest needs of the federal government,” Mark Ames, director of government relations for the AIHA, said in an e-mail.

“AIHA encourages the federal government to issue an emergency temporary standard on occupational exposure to COVID-19,” Ames continued.

“Enforcement, consistency, and coherence are among the biggest benefits that an emergency standard would offer.”

The NSC also encourages employers to take the lead in promoting vaccination as vaccines become available to individuals of additional ages and occupations, Terry said.