The federal worker safety watchdog is weeks behind on President Joe Biden’s deadline for the agency to issue mandatory workplace safety rules that experts say will fight the spread of the coronavirus and protect workers.
Shortly after taking office, Biden gave the Labor Department a March 15 deadline to decide whether such emergency rules were necessary, and it was widely assumed the department would recommend moving forward with them. But three weeks later, newly minted Labor Secretary Marty Walsh is asking the agency to continue reviewing the rule.
“Secretary Walsh reviewed the materials, and determined that they should be updated to reflect the latest scientific analysis of the state of the disease,” a Labor Department spokesperson told POLITICO. “He has ordered a rapid update based on CDC analysis and the latest information regarding the state of vaccinations and the variants. He believes this is the best way to proceed.”
Biden campaigned on making Covid-19 guidelines — currently just optional recommendations for employers — into mandatory rules. Business groups and unions have been bracing for the Occupational Safety and Health Administration to release an emergency workplace safety standard that would immediately require employers to take steps to protect their workers from exposure to the virus.
The rule was expected to at least mandate CDC guidelines on mask wearing, which some industry groups have warned would create headaches for businesses in the states that have already moved to rollback social distancing and mask requirements for businesses. It also would likely require employers to develop a Covid-19 response plan, similar to a required fire drill, for how the businesses would respond if someone was exposed to the virus at work.
The delay is raising concerns among former workplace regulators and worker advocates, who fear Biden may be dropping an essential piece of his Covid-19 response plan, as well as sowing confusion in the business community.
“I’m concerned that there are administration staff who incorrectly believe that the pandemic is under control and that an ETS isn’t necessary,” said David Michaels, who led OSHA during the Obama administration.
“The CDC director is pleading with the country to take precautions, but workers can’t take those precautions” without an ETS, said Michaels, now a professor of occupational health at George Washington University.
Business groups are also scratching their heads after broadly expecting the rules.
“I’m as in much of a befuddlement as anyone,” said Marc Freedman, vice president of employment policy at the Chamber of Commerce. “This sounds like Secretary Walsh and the DOL are grappling with what everyone else is seeing — the increasing success of the vaccines raises serious questions about whether an ETS is justified, such as whether employees are still in ‘grave danger,’ and an ETS can be called ‘necessary.’”
The longer it takes for the Biden administration to release the rule, the harder it could be for the rule to stand up to legal challenges, according to Freedman and attorneys who specialize in workplace safety law.
OSHA only has the authority to issue an “emergency temporary safety standard” if it determines that workers are “in grave danger” due to exposure to something “determined to be toxic or physically harmful or to new hazards.” But that justification could be slipping as the Biden administration rushes to get Americans vaccinated against the virus.
While Biden administration officials have been warning that more contagious strains of the virus are taking hold, the president has been moving to expand access to the vaccine and was optimistic in his last message to the nation, promising Americans a return to some sense of normal life by Independence Day.
Republicans, who have been broadly opposed to any mandatory safety rules, are criticizing what they see as a mixed message from the administration.
“The Biden administration is speaking out of both sides of its mouth,” said Rep. Virginia Foxx (R-N.C.), the top Republican on the House Education and Labor Committee. “The President claims every adult will be eligible for a vaccine in May and then argues an immediate ‘emergency’ standard is necessary to curb the crisis.”
“This politicized process highlights the Biden administration’s blatant incompetence and hypocrisy. The federal government must not add more uncertainty and bureaucratic red tape for job creators, workers, and consumers as we continue to emerge from this crisis.”
But worker-safety experts say that the longer the Biden administration waits, more workers will get sick with the virus and could die.
“We are deeply concerned about when the standard is coming out. Basically workers have been going for a year facing untold numbers of illnesses and deaths without just a basic agreement that employers need to create a safety plan,” said Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health.
“It’s essential, it’s life saving and it needs to come out now,” she said. “We can’t wait another day for this.”
This blog originally appeared at Politico on April 7, 2021. Reprinted with permission.
About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter.