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Emergency OSHA Covid Rule Drawn Out by More White House Meetings

May 7, 2021, 10:00 AM

The White House’s regulatory office has decided to spend more time reviewing an OSHA Covid-19 emergency temporary standard, granting a string of new meetings with union and business groups, even as the pandemic begins to show signs of subsiding.

At least 30 meetings lasting through May 13 had been scheduled by the Office of Information and Regulatory Affairs as of Thursday. The sessions with groups representing employers, workers, and occupational health specialists started April 28, two days after OIRA received the standard, which has not been made public.

“The demand is very high, which speaks to why OSHA should have had a comment period,” said Robyn Boerstling, the National Association of Manufacturers vice president for human resource policy in Washington.

Employers are concerned that if the standard is enacted they’ll be forced to follow OSHA requirements that don’t fit their industry and work sites. Instead, they prefer the freedom to adopt federal and local health guidance. Worker advocates counter that if an employer already adheres to health recommendations, the standard shouldn’t be a challenge to comply with.

The Occupational Safety and Health Administration is attempting to issue the regulation as an emergency temporary standard to deal with an immediate grave danger, a process that enables OSHA to enact the rule without a formal public comment period. The process is coming more than a year into the pandemic as Covid-19 cases are falling and at least 32 percent of the U.S. population is fully vaccinated, according to the Centers for Disease Control and Prevention.

Interest is still running high among groups that could be affected. OIRA’s Covid-19 standard meetings already surpass the 2016 review of OSHA’s final rule for silica exposure where 26 meetings were held over five weeks before the rule was issued in March 2016.

“Thirty is on the higher end and that number makes sense to me given the stakes and complexity of the issues involved in the emergency temporary standard,” said Bridget Dooling, a former OIRA senior analyst and now a research professor at The George Washington University’s Regulatory Studies Center in Washington.

Who’s Listening

At meetings already held, OIRA records show that the agency has been primarily represented by career service analysts. One exception at a few sessions has been Samuel Bagenstos, who President Joe Biden named as general counsel for the Office of Management and Budget, OIRA’s parent agency.

OSHA has been represented at most of the meetings by Joe Coble, the career-service director of its Office of Technological Feasibility. The Department of Labor has been often represented by attorneys from the Office of Solicitor and policy analysts including Stephanie Swirsky, deputy assistant secretary for policy.

The OIRA review is required by a 1993 executive order calling for analyses of whether proposed regulations reflect the president’s policies and priorities, whether the requirements conflict with other government mandates, and if the regulation’s economic analyses are correct.

Government representatives from OIRA, OMB, and DOL listened to presentations and didn’t ask substantial questions or discuss what the standard proposed, according to meeting participants interviewed by Bloomberg Law.

The standard is expected to require employers to conduct a Covid-19 hazard assessment and follow guidance from the CDC and OSHA to prevent work site infections. It is unclear whether the standard will be issued with separate mandates for health-care employers.

Sooner Is Better

At the sessions, worker advocates stressed the need to stop workplace infections of the coronavirus and for the rule to be enacted quickly. The federal government doesn’t track Covid-19 deaths or infections by occupation or industry.

“As far as we’re concerned—the sooner, the better. We were behind the curve to begin with,” said Peter Dooley, senior health and safety project consultant in Phoenix for a worker advocacy group, the National Council for Occupational Safety and Health.

Union representatives explained to OIRA the standard would further Biden’s goal of protecting workers at high risks of infections and death—low-wage workers and people of color, said Rebecca Reindel, the AFL-CIO’s director of occupational safety and health. Among the industries are meat processing, agriculture, and service operations where there is frequent contact with the general public.

The Biden administration initially set March 15 as its goal for issuing a rule, but didn’t officially deliver it to OIRA until April 26.

The delay getting the standard to OIRA was likely a sign OSHA took into consideration employers’ compliance concerns while writing the standard, Boerstling said. “I’m heartened by the fact they didn’t rush into this,” she added.

Public Health

Employers representatives said they old OIRA that they’ve already taken preventative actions to protect workers and now spread of the virus outside the workplace is the primary problem.

“Solve the public health emergency and the workplace component will be solved,” Marc Freedman, vice president for employment policy for the U.S. Chamber of Commerce, told Bloomberg Law.

OIRA is also hearing opinions on how vaccinations should affect the need for the regulation. Nearly 250 million vaccine doses have been administered, according to the CDC.

“Enforceable standards are still needed even as vaccinations continue,” Reindel said OIRA was told.

The standard should reinforce the importance of Covid-19 precautions even after employees are vaccinated until there is evidence they are no longer needed, Mark Ames, director of government relations for the American Industrial Hygiene Association, said the group told OIRA.

The AIHA also advised OIRA that the standard should also address when its requirements could be phased out as the virus becomes a lesser hazard, he said. The National Association of Manufacturers cautioned that the standard must allow OSHA to quickly respond to medical guidance that evolves as vaccinations become more common place, Boerstling said.

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

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Travis Tritten at ttritten@bgov.com; Andrew Harris at aharris@bloomberglaw.com

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