DOL Sends COVID-19 Emergency Temporary Standard for Review

The debate continues as to whether a COVID-19 standard is needed.  However, the march toward getting one in place continues.  On April 26th, Marty Walsh, Secretary of the Department of Labor, reportedly submitted draft language for the potential COVID-19 emergency temporary standard to the White House’s Office of Management and Budget (OMB), specifically to The Office of Information and Regulatory Affairs (OIRA).

OIRA is a part of the Office of Management and Budget within the Executive Office of the President. OIRA is the United States Government’s central authority for the review of Executive Branch regulations, approval of Government information collections, establishment of Government statistical practices, and coordination of Federal privacy policy.

The timeline of events leading up to this latest rule submission to OIRA went like this:

• On January 21st, 2021, by executive order, President Joe Biden directed the Occupational Safety and Health Administration (OSHA) to consider the need for  a COVID-19 rule and to publish it by March 15th, 2021.
• On January 29th, 2021 OSHA issued COVID-19 Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.
• On March 23rd, 2021 Marty Walsh officially assumed office as Secretary of the Department of Labor.  He delayed the submission of COVID-19 rule language stating that he needed time to review the scientific data in order to develop a proper framework for the proposed standard.
• Finally, and to date, on April 26th,  2021 DOL Secretary Walsh submitted to the OMB for review proposed language for the rule.

If accepted, the next step in the process is submission of the proposed rule to the Federal Register for publication and the opening of a docket wherein public comment on the rule will be received.

The State of Virginia has already adopted a permanent standard for preventing COVID-19 in the workplace.  The Virginia standard became effective on January 27th of this year.  It is foreseeable that this standard may be considered during the development of a COVID-19 standard on the federal level.

Although there is not yet a COVID-19 standard in place (except in Virginia) businesses should continue to be diligent in following the OSHA’s recently issued guidance .   Penalties for violations may still be sustained by a business under the “general duty clause .”  A recent example of this was found in Illinois where a warehouse and distribution company was cited by OSHA.  The agency proposed a penalty of $12,288 for one serious violation of OSHA’s general duty clause.  In this case, 23 workers at the company tested positive for the COVID-19 virus and one worker died due to complications from COVID-19.  During inspection, OSHA found the company failed to follow its own internally developed controls for potential coronavirus exposure or to take immediate steps to contain the outbreak.  Following discussions with the local county health department, the facility closed.

When may the requirements of a new federal standard go into place?  It may be a few months, if, indeed, a rule is adopted at all.  It takes time to decide what particular language the rule should include.  Comments from the public and evidence must be received and considered in the development of the rule.  However, we may, within a couple of weeks, see what the proposed standard may include as it makes its way to the Federal Register.  We will keep you updated.