Robert O’Hara Cited in “Biden Orders OSHA to Issue New COVID-19 Guidance”

One day after he was inaugurated, President Joe Biden fulfilled a campaign promise to labor unions by ordering the Occupational Safety and Health Administration (OSHA) to begin the process of developing COVID-19 Emergency Temporary Standards (ETS) for employers.

Both OSHA and the Mine Safety and Health Administration (MSHA)—sister agencies operating under the aegis of the Department of Labor (DOL)—were directed to come up with new enforcement guidances within two weeks after the order was signed.

However, OSHA also was directed to consider developing ETS, which possess the status of formal regulations unlike guidances, the order specifically mentioning the prospect of requiring masks in the workplace. However, the agency won’t have very long to mull the possible content of potential ETS because whatever OSHA develops along these lines must be issued by March 15, according to the order.

Of course, OSHA has been issuing guidances for employers on how to deal with the COVID-19 pandemic since early last year, initially incorporating advice from the Centers of Disease Control and Prevention (CDC) and other sources. Nonetheless, unions have argued that the previous guidances lacked the force and power of ETS regulations, which they demanded be developed.

Under the Trump administration, OSHA did pursue enforcement actions against employers—primarily in the healthcare industry—for failing to take adequate measures to protect their employees. Along the way, OSHA and other federal agencies were forced to revise and alter their guidances to deal with changing circumstances and requests for clarification from employers and the public. It is unclear whether a formal federal ETS could be amended as quickly and easily.

If OSHA chooses to issue ETS—something that it is generally expected to do—the standards would take effect immediately and last no longer than six months, unless they are eventually adopted as a permanent standard, notes attorney Robert J. O’Hara of the law firm of Epstein Becker & Green.