When he was running for president last year, Joe Biden released a four-point plan for how to protect essential workers during the pandemic. One thing then-President Donald Trump needed to do, Biden said, was put in place an enforceable safety standard that employers would have to follow, subject to fines.
Trump never did that. And so far, neither has Biden.
The administration is now a month past a March 15 deadline it had set for establishing a COVID-19 emergency temporary standard through the Occupational Safety and Health Administration, which is part of the Labor Department. Such a standard would lay out an employer’s obligations in clearer terms, since there’s nothing on OSHA’s existing rulebook expressly related to the pandemic.
An agency spokesperson said Labor Secretary Marty Walsh determined that the proposals for such a rule need to be updated to account for the latest science on the coronavirus, as well as the pace of vaccinations around the country.
The holdup has caused worry among some occupational health experts that the administration might shelve the standard since the vaccination campaign looks encouraging. Among them is David Michaels, who headed OSHA during the Obama years. Michaels said waiting any longer is a mistake.
“The longer we delay, the more workers will get sick, and the longer the pandemic will go on,” Michaels told HuffPost.
In an interview on MSNBC’s “Morning Joe” last Thursday, Walsh, who was nominated by Biden and recently confirmed by the Senate, said the administration was reevaluating the rule and whether it was necessary. “I’d say we’re looking at this … just to see before we move forward with any kind of standard, if we need to move forward with a standard,” Walsh said.
The longer we delay, the more workers will get sick. David Michaels, former OSHA chief
Biden signed an executive order related to the standard on his second day in office. While it did not promise a standard would be put in place, the order directed OSHA to explore one and issue it by March 15 if it was deemed necessary. Bloomberg reported Wednesday that employment lawyers tracking the rule still believe the administration will issue one, and perhaps soon.
More than 560,000 Americans have died from COVID-19. The number of cases has come down considerably from its winter peak, but has been trending upward in the U.S. this month. Nearly a quarter of all Americans are now fully vaccinated, though experts including Dr. Anthony Fauci have warned against pulling back on public-health measures such as masks and crowd limits.
Some of the worst COVID-19 clusters have centered around particular workplaces, especially in higher-risk fields like nursing homes and meatpacking. More than 900 workers at a single Smithfield pork plant in South Dakota got infected over the course of five weeks last spring.
Safety advocates say a specific OSHA standard for COVID-19 would compel employers to follow basic health guidelines and make it easier to cite and fine those who don’t. OSHA did not move forward with such a standard under the Trump administration, but both Virginia and California implemented their own, laying out requirements related to face coverings, testing and contact tracing, and other safety measures.
Eric Conn, a lawyer who advises employers on OSHA issues, said he believes the Biden administration will move ahead with a rule. While the pace of vaccinations has been promising, Conn said rising cases and the pause in the use of the Johnson & Johnson vaccine “is absolutely going to have an effect on their thinking here.”
“I’m frankly surprised it hasn’t been done yet,” he said. “I think there’s room to both do a rule and recognize that maybe we are coming out of this.”
Business groups routinely fight tighter OSHA regulations, but Conn said a lot of employers would have already implemented and absorbed the costs of many requirements that might go into a COVID-19 standard. He has been working with a consortium of business groups called the Employers’ COVID-19 Prevention Coalition, and said many of them are OK with Virginia’s standard but found California’s too prescriptive.
Although the emergency standard would be developed by OSHA, it would require approval from the White House Office of Management and Budget. A White House spokesperson did not respond to a request for comment on the status of a standard.
Several states have loosened their COVID-19 restrictions as cases and deaths have fallen from their highs. For instance, Texas Gov. Greg Abbott (R) ended the state’s mask requirements and allowed businesses to fully reopen more than a month ago. Daily cases have since leveled off but not surged upward.
I think there’s room to both do a rule and recognize that maybe we are coming out of this. Eric Conn, attorney
Debbie Berkowitz, an occupational health expert at the National Employment Law Project, said the decision by some states to pull back on safety measures underscores the need for a federal rule. If OSHA issued a standard, employers in a state like Texas would be required to follow it regardless of the local guidance.
“The federal government is the Johnny-come-lately here,” said Berkowitz. “This is the largest occupational health crisis since OSHA was created [in 1971]. To mitigate against the spread of COVID-19, including the new variants, you have to mitigate against the spread at work.”
The Trump administration shied away from using any of OSHA’s tools to address the spread of the virus. It carried out few inspections relative to the number of complaints and issued paltry fines, including one of just $13,434 against Smithfield’s South Dakota plant, which employed two workers who died of COVID-19.
The Biden administration has said it plans to take a more aggressive approach on the virus through OSHA. The agency recently issued its largest fine related to COVID-19 to date, against a Massachusetts tax preparer who forbade her workers from wearing masks. The initial penalty came to $136,000, though it may be reduced significantly on appeal.
Michaels said it was good to see OSHA using its fining powers to send a strong message on safety, but that the agency should still issue an emergency standard.
“There’s no question that focusing on masks and increased ventilation would be very impactful,” Michaels said. “The lack of urgency is surprising.”