OSHA covid 19 hearing

Never a dull moment here in Washington DC. OSHA has announced that it will have a COVID-19 standard covering health care workers out in 6-9 months and pulls the plug on the vax-or-test standard.

Mirage? OSHA Announces Fast Permanent Healthcare Worker Standard

OSHA leaders Doug Parker and Jim Frederick committed last week to issuing a permanent OSHA standard to protect health care workers from COVID-19 within 6 to 9 months.  That promise was included in OSHA’s response to a lawsuit filed by labor unions after the agency withdrew its Emergency Temporary Standard covering health care workers.  The union lawsuit argued that the Occupational Safety and Health Act requires OSHA requires OSHA to leave an ETS in effect until a final rule is issued and that the final rule must be issued within 6 months.  OSHA had withdrawn the healthcare worker standard arguing that it could not meet the 6 month deadline envisioned by the law, although most observers do not take that 6-month as a hard deadline, but rather a goal — an impossible goal.  The unions asked the court to order OSHA  to issue a permanent standard in 30 days.

OSHA argued in the brief that the law gives the agency discretion to set its regulatory agenda and that OSHA had chosen, first to cover health care workers, and then to issue the vaccine-or-test rule recently rejected by the Supreme Court. The agency then went into great detail about the various laws and Executive Orders that make OSHA’s regulatory process glacially slow, but nevertheless committed to issuing a permanent standard in less than a year.

OSHA also seemed unsure about its decision to withdraw the healthcare ETS. Noting that the Section 6(c)(2) of the OSHAct states that an ETS “shall be effective until superseded” by a permanent standard, OSHA threw itself on the mercy of the court:

No court has considered whether an ETS remains in effect and enforceable when the Secretary is unable to finalize a permanent standard in a timeframe approaching the one contemplated by the OSH Act due to competing priorities, as OSHA had previously determined is the case here. OSHA now expects to finalize a Healthcare Standard much sooner than anticipated given the Agency’s re-prioritizing of resources subsequent to the Supreme Court’s decision in NFIB. Should the Court determine that the ETS remains in effect until superseded by a final standard, the Court should recognize that a final standard is estimated to take six to nine months, not the thirty days requested by the Unions.  (emphasis added)

Personally, I’m extremely skeptical about that six to nine month schedule. Although the withdrawn ETS serves as the official proposal for the final standard, OSHA would still have to conduct hearings. OSHA hearings can go on for weeks, depending on how many people want to testify, and are normally preceded by a month long pre-hearing comment period, as well as a lengthy post hearing comment period. Then OSHA has to review all comments and incorporate those them into the final standard. Finally, the final standard faces White House review which can often take months.  The Government Accountability Project found in 2012 that the average time from a proposal to a final rule was thirty-nine months. If OSHA can figure out a way to significantly reduce that time period, I’m fully supportive — and hope they will then be able to apply those accelerated procedures to all future OSHA standards.

Dead Standard Walking: OSHA Withdraws Vax-or-Test Emergency Rule

OSHA has decided to cut its losses after the recent Supreme Court rebuff and withdrew its November 5 emergency temporary standard that required all employers to ensure their workers were tested and masked unless they were vaccinated.  Although the Supreme Court decision was technically about whether or not to temporarily block the standard and not about the merits of rule, the writing is clearly on the wall that should the 6th Circuit again uphold the rule, the inevitable Supreme Court appeal would again fail. With the withdrawal of the vax-or-test ETS and OSHA’s withdrawal of the health care worker ETS, workers are left with no legal protection from COVID-19 aside from the burdensome General Duty Clause, and the Center for Medicare and Medicaid vaccine mandate that covers most health care workers.



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