OSHA under Deadline for a Nationwide COVID-19 Workplace Safety Rule: Four States' Existing Laws and New Federal Guidance and Orders Foretell the ...

March 3, 2021

Environmental and Workplace Health & Safety
OSHA under Deadline for a Nationwide
COVID-19 Workplace Safety Rule: Four
States’ Existing Laws and New Federal
Guidance and Orders Foretell the Future
By: Gabrielle Sigel

On his first full day in office, President Biden issued an Executive Order on Protecting Worker Health
and Safety, which required OSHA to “consider whether any emergency temporary standards on
COVID-19, including with respect to masks in the workplace, are necessary,” and if so, to issue such
emergency temporary standards (ETS) by March 15, 2021. Executive Order 13999, § 2(b) (Jan. 21,
2021), 86 FR 7211 (Jan. 26, 2021). An ETS, which skips the initial notice and comment process before
it is in effect, can be issued pursuant to Section 6(c) of the OSH Act if OSHA determines that
employees are exposed to “grave danger” and that an emergency standard is necessary to protect
them from the grave danger. 29 U.S.C. § 655(c).

Putting aside that OSHA has not successfully issued an ETS since 1978, including that the last attempt
to issue an ETS, regulating asbestos exposure, was invalidated by the US Court of Appeals in 1984,[1]
OSHA now has several models for a COVID-19 ETS from which it may draw. Specifically, California,
Michigan, Oregon, and Virginia are among the 22 states and territories that administer and enforce
their own state-plan OSHA, rather than rely solely on federal standards and enforcement.[2] These four
states have developed their own COVID-19 safety regulations that apply to most, if not all, workplaces
in their respective states, and have both distinctive features and commonalities. Employers would be
well-advised to be aware of each of the states’ specific standards, not only to comply with regulatory
requirements in that state, but to consider whether their workplace is ready for potential, nationwide
regulations which may incorporate elements of these states’ approaches.

With OSHA under a Presidential deadline to issue a nationwide COVID-19 safety regulation, we review
the current status of OSHA guidance; describe the basic elements of the four states’ regulations; and
look at recent federal orders by other agencies to anticipate what employers nationwide may soon be
facing.

US OSHA: COVID-19 Regulation and Guidance in the Prior Administration

US OSHA currently has several well-established regulations that apply to aspects of workplace
protection that also apply to certain workplaces operating during the pandemic. For example, OSHA’s
PPE and respiratory standards would apply particularly to work in hospitals and those in direct contact
with people or bodies known to be infected by COVID-19. See, e.g., 29 CFR 1910.132, 1910.133,
1910.134. OSHA’s illness recordkeeping standard applies to workplaces otherwise required to do that
recordkeeping (29 CFR 1904.2(a)), and all workplaces are required to report to OSHA work-related
cases that result in hospitalization or death within 24 hours of a workplace exposure (see fn 9). The
General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act, 29 USC 654(a)
(1), requires each employer to furnish to each worker "employment and a place of employment which
are free from recognized hazards that are causing or are likely to cause death or serious physical
harm." 29 U.S.C. § 654(a)(1). Yet, the General Duty Clause does not provide clear direction on what an
employer must do at the workplace, and enforcement by OSHA during the pandemic under the General

Duty Clause can be difficult in all but the most egregious cases.

On its COVID-19 resource webpage, OSHA essentially recognizes that it does not have a
comprehensive standard for working during the pandemic, as the state-plan states’ COVID-19
regulations do. OSHA points to its own bloodborne pathogen standard and California’s ATD standard
as either provisions that “offer a framework that may help control some sources of the virus,” or
“provid[ing] useful guidance for protecting [non-healthcare] workers exposed to SARS-CoV-2.”[3] OSHA
has responded to previous threats of airborne disease and viral transmission by issuing specific
guidance, as in the case of the Zika virus, avian flu, and the H1N1 virus. To state the obvious, SARS-
CoV-2 is unique in US workplaces for many reasons, including the length of time it has been a threat,
its asymptomatic transmission, and the sheer number of cases of sickness and death.

On March 9, 2020, OSHA issued its “Guidance on Preparing Workplaces for COVID-19,” (Preparing
Guidance) and on June 17, 2020, OSHA issued its “Guidance on Returning to Work,” (Reopening
Guidance) (both currently under review by OSHA under the Biden Administration).[4] In its Preparing
Guidance, OSHA recommended that employers divide job tasks into exposure levels of “very high, high,
medium, and lower risk” and then recommends steps employers should consider taking to protect
workers in each risk category, using its “hierarchy of controls” framework for addressing workplace
risks, i.e., engineering controls, followed by administrative controls, safe work practices, and PPE.
Specific controls generally were not offered and OSHA repeatedly described controls as “to be
considered,” including physical barriers.

In its Reopening Guidance issued three months later as a supplement to the Preparing Guidance,
OSHA’s “guiding principles” were that employers’ reopening plans “should address”:

    Hazard Assessment
    Hygiene
    Social Distancing
    Identification and Isolation of Sick Employees
    Return to Work After Illness or Exposure
    Controls
    Workplace Flexibilities
    Training
    Anti-retaliation

In addition to the two basic guidance documents, through 2020, OSHA issued industry-specific COVID-
19 Alerts for specific industries or types of jobs. For example, it issued, COVID-19 Guidance for the
Package Delivery Workforce, which contained “tips [to] help reduce the risk of exposure.” Those tips
included suggestions such as, “Allow workers to wear masks over their nose and mouth to prevent
them from spreading the virus” and “Discourage workers from using other workers’ tools and
equipment.” These guidance documents were not clear mandates for any specific type of hazard
control.

The previous administration successfully resisted attempts to force it to adopt an ETS, instead insisting
that it would rely on existing regulations and guidance, the General Duty Clause, and its enforcement
priorities.

Four State-Plan States’ Approach

Four state-plan states determined that the business in their state should be regulated more
prescriptively and with compliance mandates. An evaluation of each of these states’ regulations can be
found in our Guide to COVID-19 Workplace Safety Regulation in Four State-Plan States.

In summary, these states took each of the elements in the Reopening Guidance and added specific,
mandatory requirements, particularly with respect to hazard controls, return-to-work policies, and

training. The principal differences are whether the state’s regulations expressly accommodate different
levels of exposure risk (as described in the Preparing Guidance) and/or whether the state provides
specific requirements for specific industries. The structure of Virginia’s permanent COVID-19 workplace
safety regulation is built on the exposure risk approach described in the Preparing Guidance, and then
adds specific controls and requirements for each exposure risk level. Michigan Emergency Rules
require employers to categorize risk, but also includes hazard controls by industry. Oregon Emergency
Rules have more industry-specific, fewer industry-wide prescriptive controls. Only California’s ETS does
not rely on either an industry-specific or exposure risk regulatory approach, imposing requirements
through its Injury and Illness Prevention Plan model for all employers except those healthcare
employers already covered by its 2009 Aerosol-Transmitted Disease regulation. California’s ETS also
requires more action, compared to all other States, in response to COVID-19 cases in the workplace,
such as testing of exposed and potentially exposed employees and wage and benefit protections for
employees who are required to be excluded from the workplace for quarantine or isolation.

By the end of the prior administration, these four states were the only states with workplaces operating
under a comprehensive COVID-19 workplace safety regulation, enforced by the state’s occupational
safety and health agency, not federal OSHA. The other states’ employers were operating under US
OSHA guidance and existing regulations, as described above, and their Governors' COVID-19 public
health directives and orders.

The Biden Administration’s OSHA Guidance to Date

President Biden’s Executive Order on Protecting Worker Health and Safety instructed OSHA to take
several COVID-19 workplace safety actions: issue “revised guidance” within two weeks; consider and, if
necessary, issue a COVID-19 ETS by March 15; enhance enforcement; and initiate a multilingual
workers’ rights outreach program. Executive Order 13999, § 2.

OSHA issued its revised guidance eight days later on January 29, 2021. The new “stronger” guidance
document, entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-
19 in the Workplace (Protecting Guidance), used more resolute language, such as directives that
employers “should” implement certain programs, provided more details on a range of elements,
including emphasizing communication to workers in native languages and non-retaliation, and
incorporated recent CDC guidance.

Introducing the principal elements of its Protecting Guidance, OSHA reiterated employers’ obligation
under the General Duty Clause, and stated that, “[i]mplementing a workplace COVID-19 prevention
program is the most effective way to mitigate the spread of COVID-19 at work.” According to the
Protecting Guidance, that program includes:

    Assigning a COVID-19 coordinator responsible for COVID-19 issues on behalf of the employer
    Conducting a hazard assessment
    Implementing controls, following the hierarchy of controls starting with engineering controls,
    administrative controls, PPE, and suppressing spread through hand washing, sanitation, and face
    coverings
    Considering protections for workers at higher risk for severe illness, including age, through
    supportive policies and practices
    Communicating and training in appropriate languages and in an understandable fashion
    As a “best practice,” instituting a “two-way” communication system for workers to report their
    symptoms and medical status and for employers to report illness cases in the workplace
    Instructing sick and exposed workers to stay home and having non-punitive absence policies
    Performing cleaning and disinfection, particularly after ill people have been at work
    Following state and local guidance regarding pre-entry health screening and testing
    Recording and reporting cases per existing regulation and reporting to health departments as
    locally required
    Protecting workers from retaliation for raising concerns about COVID-19 hazards

OSHA’s revised guidance also repeats, in detail, CDC guidelines regarding face coverings and periods
of time for isolation and quarantine. However, what perhaps is most distinctive about the revised OSHA
guidance is its reference to COVID-19 vaccination. OSHA’s Protecting Guidance states that an effective
COVID-19 Prevention Plan should: “Mak[e] a COVID-19 vaccine or vaccination series available at no
cost to all eligible employees,” and employers should provide information about “the benefits and safety
of vaccinations.” However, because the science on whether the vaccine prevents transmission is not
settled, employers should be sure to not “distinguish[] between workers who are vaccinated and those
who are not,” with regard to protective measures, such as face coverings.

OSHA’s Protecting Guidance lays out in more detail the elements of a COVID-19 Prevention Plan, and
indicates new concerns for enforcement, including with respect to language usage and vaccination
efforts. However, OSHA’s enforcement powers continue to be limited primarily to General Duty Clause
and PPE violations, as occurred in the prior administration. Like its predecessor guidance, OSHA states
that the document “is not a standard or regulation, and it creates no new legal obligations. It contains
recommendations as well as descriptions of existing mandatory safety and health standards. The
recommendations are advisory in nature, informational in content, and are intended to assist employers
in recognizing and abating hazards likely to cause death or serious physical harm as part of their
obligation to provide a safe and healthful workplace.”

What OSHA’s Soon to Drop “Shoe” May Look Like

In considering issuing a COVID-19 ETS, OSHA faces political and legal risks that the state-plan states
do not face. As noted above, OSHA has not even attempted to issue an ETS in close to 40 years. The
facts that work through the pandemic has been occurring for a year and vaccines are becoming
increasingly available will likely hurt OSHA’s ability to prove grave danger and necessity across all
workplaces and in all industries. The fact that OSHA has issued COVID-19-related citations, with
proposed penalties exceeding $4 million, under the General Duty Clause and existing regulatory
standards, will also make it difficult for OSHA to prove the need for a broad ETS. Even though the
Department of Labor Office of Inspector General’s February 25, 2021 report (the OIG Report) criticizes
OSHA’s pandemic performance as deficient, it largely blames “increased complaints, reduced
inspections, and most inspections not being conducted onsite subject employees to greater safety
risk.” OIG Report at p. i. The OIG Report also stresses that OSHA’s guidance on COVID-19 safety is
not enforceable, and urges OSHA to consider an ETS; however, it notes that OSHA can rely on its
guidance as evidence to support a General Duty Clause claim. OIG Report, pp. 10-14. Indeed, as
recently as February 23, 2021, OSHA announced that it had issued a citation under the General Duty
Clause against a manufacturer, after an employee died, allegedly after workplace exposure to SARS-
CoV-2. Although the OIG Report supports a COVID-19 ETS, perhaps inadvertently, the report more
strongly demonstrates that deficiencies in OSHA’s workplace safety protection was due to lack of
enforcement, not necessarily due to the lack of tools to do so.

Although OSHA has received demands from labor and other advocates to enact a nationwide ETS,
resembling the Virginia model, the California model, or its own guidance, OSHA may well decide that a
more politically and legally feasible approach is a more targeted one. For example, under the Biden
Administration, federal orders requiring face coverings in workplaces have already begun. On January
21, 2021, the President’s Executive Order 13998, Promoting COVID-19 Safety in Domestic and
International Travel, 86 FR 7205 (Jan. 26, 2021), has resulted in the CDC issuing a nationwide order
requiring masks of a certain type to be worn, by the public and workers, in and on airplanes, trains,
buses, and various modes of surface transportation, including in stations and terminals. Requirement
for Persons to Wear Masks While on Conveyances and at Transportation Hubs. CDC Agency Order,
86 FR 8025 (Feb. 3, 2021). On January 31, 2021, the TSA issued a Security Directive for enforcing the
CDC Order. Security Directive 1582/84-21-01.

Most recently, on March 1, 2021, the Federal Railroad Administration (FRA) issued the Emergency
Order Requiring Face Mask Use in Railroad Operations, stating that it was “exercising its emergency

railroad safety authority” to require rail carriers to require mask wearing by railway workers “while
engaged in railroad operations.” 86 FR 11888, 11890 (Mar. 1, 2021). To support this Emergency
Order, the FRA noted that it has authority to issue emergency orders to address an unsafe practice
that “causes an emergency situation involving a hazard of death, personal injury, or significant harm to
the environment,” including “restrictions and prohibitions… that may be necessary to abate the
situation.” 86 FR at 11888, citing 49 U.S.C. § 20104. The FRA justified its emergency order by
describing the impact of the pandemic generally; concerns about virus variants that spread more easily
and quickly; and field observations of personnel not wearing masks. The FRA stated that its emergency
order was “necessary…to ensure a minimum level of nationwide compliance, together with the [TSA’s
Security Directive].” 86 FR at 11890. The FRA also referred to the railroad transportation system being
essential for public health, the economy, and “other bedrocks of American life.” Id. While clearly
applicable only to a specific industry, the FRA emergency order may indicate a targeted approach that
OSHA may take at all workplaces, i.e., requiring the wearing of face masks at workplaces and in the
work environment, except for narrow exceptions.

OSHA also may decide to issue a regulation targeting a particular industry or hazards, such as
adopting California’s ATD Standard as a federal ETS for the healthcare industry. Or OSHA may convert
its most recent Protecting Workers guidance into an ETS targeted to specific high hazard industries,
such as healthcare, congregate living facilities, meat processing plants, or manufacturing facilities.
OSHA also may use its ETS powers to obtain information regarding the immediate reporting of COVID-
19 cases in the workplace, in order to gather the data necessary to support both enhanced
enforcement efforts or a future ETS.

Notably, on February 15, 2021, former HHS and OSHA officials, joined by other public health
luminaries, called on COVID-19 Pandemic Response members, Jeffrey Zients, Dr. Rochelle Walensky,
and Dr. Anthony Fauci, as well as other top federal officials, including at OSHA, to have the CDC and
OSHA revise their guidance and regulations, including by requiring healthcare workers and workers “at
very high risk of exposure and infection such as in food processing, prisons, and security” to be
provided N95 respirators, so that they need not rely solely on face coverings. Letter from R. Bright, et
al., “Immediate Action is Needed to Address SARS-CoV-2 Inhalation Exposure” (Feb. 15, 2021). The
letter’s signatories also called on OSHA to issue an ETS “that recognizes the importance of aerosol
inhalation, includes requirements to assess risks of exposure, and requires implementation of control
measures following a hierarchy of controls,” essentially the basic elements in OSHA’s Protecting
Workers guidance. They also called on OSHA to require that workers at lower exposure risks be
“offered high-performing barrier face coverings tested to the STM F3502-21 Standard Specification for
Barrier Face Coverings with at least 80% filter efficiency, no more than 15mm H2O air flow resistance
and total inward leakage of no more than 5% on a panel of at least 10 subjects.” Id. They further
recommended that this OSHA broad masking requirement be supported by a “national effort,” including
under the Defense Production Act, to have N95 respirators and the ASTM 80% face coverings
available for nationwide worker protection. Id.

Whichever approach OSHA takes by March 15, 2021, it will face political opposition, and the legal
opposition to any ETS likely will be fierce. In the meantime, employers should consider that President
Biden’s Protecting Worker Health and Safety Executive Order also called for OSHA to ramp up its
enforcement activities, including to protect workplaces with a large number of people at risk. 86 FR at
7211, §§ 2(c), (d). Thus, regardless of whether OSHA issues a nationwide ETS, employers who have
experienced multiple cases of COVID-19 or are in industries with higher numbers of cases would be
well-advised to have in place a COVID-19 prevention plan, with well-recognized physical distancing,
sanitation, mask-wearing, and other now-standard COVID-19 prevention controls.

For more information or advice on the various state-plan states’ COVID-19 standards, OSHA standards
and guidance, and enforcement nationwide, please contact the author. Additional information regarding
working during the COVID-19 pandemic can be found on this blog and in the Jenner & Block COVID-19
Resource Center.

Conscious of the human, operational and financial strain that coronavirus is placing on businesses and
organizations worldwide, Jenner & Block has assembled a multi-disciplinary Task Force to support
clients as they navigate the legal and strategic challenges of the COVID-19 / Coronavirus situation.

For additional information and materials, please visit our COVID-19 / Coronavirus Resource Center.

                                             Click here to visit our COVID-19 / Coronavirus Resource Center

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[1] Asbestos Info. Ass’n v. OSHA, 727 F.2d 415 (5th Cir. 1984) (ETS rejected because OSHA did not
sufficiently support its conclusion that 80 people would die in the next six months or that the ETS was
necessary given its existing respiratory standard).

[2] State plans are authorized under Section 18 of the OSH Act and must have regulations “at least as
effective” as federal OSHA.” 29 U.S.C. § 667(c).

[3] OSHA COVID-19/Regulations webpage (last viewed 2/24/2021).

[4] Each of the formerly issued OSHA guidance documents has a banner stating, “Given the evolving
nature of the pandemic, OSHA is in the process of reviewing and updating this document. These
materials may no longer represent current OSHA recommendations and guidance. For the most up-to-
date information, consult Protecting Workers Guidance [which was issued on January 29, 2021 and is
discussed below.].”

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