May 18, 2021 -- On his first full day in office, President Joe Biden wasted no time in signaling a long-awaited shift for protecting workers during the pandemic, ordering the Occupational Safety and Health Administration to enact emergency rules for the first time since 1983.
Under Trump, OSHA relied on general standards and did not create new rules for the pandemic. Now, the agency sent draft standards to the Office of Management and Budget for review on April 26 — but it's unclear when they will take effect.
"OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right," said OSHA spokeswoman Kimberly Darby, who declined to estimate how long the review will take.
As health care unions and workers wait, here's what the rules might cover and why many believe the emergency standards are still needed at this point in the pandemic.
What Could Be in the New Standard
OSHA posted updated guidance on protecting workers from COVID-19 in late January, including COVID-19 prevention programs and key measures for limiting disease spread.
But the guidance isn't enforceable, and for now, the exact contents of the future standards are "a pretty closely guarded secret," said James Brudney, JD, a professor at Fordham Law School in New York City and former chief counsel of the U,S, Senate Subcommittee on Labor.
Generally, OSHA looks toward the scientific recommendations of the National Institute for Occupational Safety and Health (NIOSH), a division of the CDC that's responsible for conducting research and making recommendations on how to better protect people doing hazardous work, said Gregory Wagner, MD, a former NIOSH senior advisor now at the Harvard T.H. Chan School of Public Health in Boston.
"OSHA takes the scientific recommendations of NIOSH and often incorporates them into the standard setting process," Wagner says, "but they are not obligated to accept the recommendations from CDC."
OSHA could also base its standards on the ones of states such as Virginia, California, and Oregon, which have already issued their own rules. (Each of those states will be required to make sure their regulations are at least as protective as the new federal rules.)
Health care workers and unions will be closely watching for specific requirements, especially related to respiratory protection after the CDC recently acknowledged aerosol spread as a major mode of transmission and said that only unvaccinated people have to wear masks in many public places. (In health care settings, masks are still required for everyone.)
"It is very important that the CDC further acknowledge the role of aerosol transmission," said former Obama administration Assistant Secretary of Labor David Michaels, PhD, now at the Milken Institute School of Public Health of George Washington University. It's also important for OSHA to "encourage employers to examine and improve ventilation systems," he said.
Rules could address the mask issue by authorizing and/or encouraging employers to verify which employees are vaccinated and don't need to wear masks, Brudney said.
"Whether there will be rules that mandate all employers to seek such verification is a closer question," he said. "The federal government as an employer might be mandated to do so, but [the U.S. Department of Labor] (or CDC) may decide that authorization and encouragement are better ways to secure widespread compliance with this workplace health-protection practice."
Some could be looking for strong anti-retaliation protections, Brudney notes. There are different standards for whistle-blowing, he explains, as some laws and regulations protect employees who have a good faith belief that safety or health requirements are being violated, some require employees' beliefs to meet a test of objective reasonableness, and others only protect employees if they're correct that a violation has occurred.
The last type "would be chilling," he says. The first "is what you need with COVID, because as scientific consensus evolves in light of new information, what someone might think was reasonable 6 weeks ago might not seem so reasonable today."
Also, OSHA doesn't provide a way for individuals to file lawsuits themselves, Brudney points out. It is possible that new rules could force employers to better monitor behavior, for example, by requiring them to create health and safety committees that include workers. These committees could report on compliance with PPE or other requirements, such as available handwashing and disinfectant stations. Such committees also could offer protection for workers who refuse to perform certain work when employers do not provide the required PPE or sanitary conditions.
Why a Standard Is Still Needed
For the U.S.'s largest labor union for registered nurses, the pending new rules are overdue but still not too late to be helpful.
"A strong [set of standards] will save lives, both inside and outside our workplaces," National Nurses United President Deborah Burger, RN, said in an April 26 press release. "It is urgent that the Biden administration complete its regulatory review with all deliberate speed. Lives hang in the balance."
Part of the delay could be the near certainty that the standards will be challenged in courts, experts said. Businesses and trade associations have sued California's OSHA office over its COVID-19 standards, and most of the standards issued in the 1970s and '80s were stymied in court. But some say that shouldn't be a holdup.
"Lawsuits against health standards that aren't purely advisory pretty much come with the territory," Brudney said. "If the agency has done solid prep work, including reliance on its own scientific research and external studies, it should just be prepared to let its lawyers do their job."
While it may seem late, putting temporary standards in place now would allow for permanent standards by the end of the year. "Almost every public health expert is saying this is going to be with us for quite some time, so having a meaningful workplace standard that could carry you forward would be quite important," Brudney said.
Having standards "will make enforcement much more straightforward, and OSHA will be able to issue citations more easily and do it in a way that encourages others to follow the law," Michaels said. Standards also have an impact even when those who break the rules aren't punished, he said, as many employers want to be law-abiding.
Even though infections are slowing down as more people get vaccinated, more people are going back to work and need protections as society reopens. With "workplaces still driving transmission, the nation's workers desperately need more protection from this virus," Michaels said. "This is the most significant worker safety crisis since the founding of OSHA; it's certainly deserving of emergency standards."