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Pressure Rising on Biden to Ditch OSHA Covid-19 Rulemaking (1)

May 26, 2021, 9:46 AM; Updated: May 26, 2021, 2:03 PM

Republican lawmakers and business groups are increasing pressure on the Biden administration to abandon efforts to develop an emergency workplace safety rule for Covid-19, calling a nationwide rulemaking unjustified given the vaccination campaign’s steady progress.

The latest resistance to the Occupational Safety and Health Administration’s emergency temporary standard comes as the White House’s formal review of the rule is now in its fifth week, a far longer period of analysis than worker advocates had anticipated.

The White House Office of Information and Regulatory Affairs has booked at least 46 meetings with interest groups through May 28, even though the emergency rulemaking process doesn’t require public outreach.

Since the review began, the Centers for Disease Control and Prevention on May 13 issued guidance allowing fully vaccinated workers to stop wearing masks and observing social-distancing guidelines in most indoor settings. Vaccination numbers also have continued to rise steadily. As of Tuesday, 39.5% of U.S. residents were fully vaccinated and 49.5% had received at least one shot, according to Bloomberg data.

“Well over a year since the pandemic was declared, every worker in the United States is eligible for a vaccination, and businesses have been authorized by federal and state governments to relax restrictions based on the latest science from the CDC,” the 23 Republican members of the House Committee on Education and Labor wrote in a letter to Labor Secretary Marty Walsh on May 24.

The CDC’s relaxed guidance for vaccinated individuals and state actions make it unlikely OSHA can successfully argue that Covid-19 poses a “grave danger” to U.S. workers, a requirement for an emergency temporary standard, the lawmakers said. They argued that an emergency rulemaking was “unfathomable” in light of the “current state of the virus,” and charged that an “ill-timed” nationwide policy would slow the pace of economic recovery.

The National Retail Federation sent a similar message in a letter to House and Senate leaders Tuesday.

“Declaring an ‘emergency’ fourteen months into a pandemic would convey the false notion that American workplaces are dangerous,” the group said.

A spokesperson for the U.S. Department of Labor, which oversees OSHA, acknowledged receipt of the Republicans’ letter. “The agency is committed to continually improve our ability to protect workers from exposure and hazards related to COVID-19,” the spokesperson added.

A pharmacist administers a Covid-19 vaccine at a vaccination site in Washington, D.C., last month.
Photographer: Eric Lee/Bloomberg

Justification in Question

Text of OSHA’s rulemaking hasn’t been disclosed publicly, but it’s expected to require employers to take steps to protect workers from contracting Covid-19 in the workplace.

The emergency rulemaking has faced pushback from the business community for months and was likely to face a court challenge. Now, the CDC’s shift on mask guidelines for vaccinated people increases the difficulty OSHA would have in defending it in court, some legal experts said.

“That really undermines the justification for an emergency temporary standard,” said William Wahoff, a member with Steptoe & Johnson in Columbus, Ohio, who participated in one of the White House regulatory office’s meetings about the rule.

Worker advocates had pressured the Trump administration to issue an emergency rule last year, but its political leadership refused to take that step, contending that respiratory protection rules and the general duty clause of the Occupational Safety and Health Act were sufficient to address worker safety. The clause requires employers to provide a workplace free of known deadly hazards that can be feasibly mitigated.

Supporters of an OSHA virus rule justify issuance of an emergency standard by pointing to the millions of workers who haven’t been vaccinated and the threat that Covid-19 variants could pose to those who have been inoculated.

The White House’s regulatory office has met with proponents and opponents of the rulemaking amid its review.

Among the groups that have taken part in meetings over the past two weeks are Airlines for America, the American Farm Bureau Federation, the National Ready Mix Concrete Association, and the League of Conservation Voters. Groups added to the meeting list this week include the Brick Industry Association and the Always Essential Coalition, a worker advocacy organization.

Slow Lane?

The rulemaking has taken longer than worker advocates had expected, said Jordan Barab, who served as OSHA’s deputy administrator during the Obama administration and was later a senior Democratic staff member for the House labor committee.

Advocates had hoped OSHA would have presented an emergency standard to the White House on March 15, the deadline outlined in President Joe Biden’s executive order calling for OSHA to consider a rule, and that the White House’s review would have taken as little as two weeks, Barab said.

Business groups and Republican lawmakers have continually questioned whether an emergency standard would allow employers to follow evolving CDC guidance, such as the changes to mask requirements. Secretary Walsh in early April ordered that the rule’s scientific analysis be reviewed to ensure it was based on the latest research.

Barab said he understands that flexibility is part of the emergency standard and that OSHA has allowed for similar adjustments in other health regulations, such as the bloodborne pathogen standard.

If the Covid-19 standard is enacted, it would be in place for six months, and OSHA would be required by law to issue a permanent rule.

(Updated the number, date range of White House meetings, in the 3rd paragraph, and new groups added to the list, in the 16th paragraph.)

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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