HR Policy Association

HR Policy Urges Guidance Rather Than Prescription in Forthcoming OSHA COVID-19 Standard

Published on: May 14, 2021

Authors: Gregory Hoff

Topics: COVID-19 Employer Issues, Employment Law

The Association met with Department of Labor and Office of Management and Budget officials regarding a potential COVID-19 workplace safety standard.  We emphasized the need for flexibility as well as the enormous strides the employer community has already taken to ensure the safety of their workplaces and employees.

For several months, OSHA has been considering promulgating an Emergency Temporary Standard (ETS) that would create workplace safety standards related to COVID-19, in response to a directive from President Biden.  Although a decision was expected by March 15, a potential ETS is still under review.

In the meeting, the Association highlighted the lengths to which employers have already gone to ensure their workplaces are safe.  These include shifts to remote work arrangements, substantial investments in safety infrastructure such as upgraded ventilation systems and rapid testing materials, infection control protocols such as social distancing and facial coverings, and generous paid time off policies for those employees who may have been exposed to the virus.  Additionally, the Association emphasized that employers have been extremely supportive of President Biden’s vaccination campaign and have provided numerous incentives for employee vaccination, including paid time off.

The Association strongly recommended that flexibility should be the emphasis of any ETS.  A flexible approach to workplace safety standards that takes into account changing CDC guidance, increased vaccination rates, differences in employer size and industry, and the associated differing risk of exposures for each employer is the most practicable course of action.  The Association highlighted California’s state-level ETS as an example of an approach that is far too rigid, overly burdensome for employers, and largely unworkable in practice.

Outlook:  It is likely that an ETS—or new guidance in lieu of an ETS—will be issued sometime this month, although the timeline is still unclear given the already lengthy delay.  HR Policy will continue to engage with the DOL, OSHA, and OMB to ensure the employer perspective is properly heard, and will provide members with compliance assistance should an ETS be issued.