In a surprising move, on June 9, 2021, US Secretary of Labor Marty Walsh told a House panel that the Occupational Safety and Health Administration (OSHA) would issue an emergency temporary standard (ETS) for workplace safety during the COVID-19 pandemic by noon the next day (June 10). A short time later, responding to a question about the ETS, he clarified that it would be mandatory only for the healthcare sector, and would serve as guidance for everyone else.
Prior to Walsh’s announcement, business groups expected that the rule, which has been under Office of Management and Budget review since late April, would apply broadly to all workplaces. Business groups have been pushing back against a potentially costly mandate, arguing that the declining number of COVID-19 cases and rising vaccination rates have potentially diminished the need for the standard and undermined legal justification for its issuance. Unions and Democrats have argued precautions such as masking and social distancing are necessary in all workplaces to protect unvaccinated workers, who may not be getting vaccinated for a variety of reasons.
A determination that workers are in grave danger authorizes OSHA to issue an ETS, a decision that can only be challenged in a US court of appeals. Though all levels of courts have shown broad deference to federal agencies when it comes to health and safety standards, government health data indicating an improving health situation nationwide, as well as the end of pandemic restrictions in many states, suggest that an ETS for COVID-19 workplace protections may not be justified.
For more information on OSHA’s COVID standards and directives, please click here.
Boling joined IIBEC in early 2021. He focuses on increasing IIBEC’s influence on federal, state, provincial, and local public policy, helping shape codes and standards, expanding IIBEC’s influence in the building industry, and increasing the relevance and value of IIBEC’s policy positions. You can reach him at jboling@iibec.org.
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