As employers wait to see whether the Occupational Safety and Health Administration will create a temporary workplace safety standard for COVID-19, their legal experts hope the federal government avoids what they contend are costly and inflexible measures put in place by individual state OSHAs.
President Joe Biden on Jan. 21 signed an executive order calling on OSHA by Feb. 4 to revise guidance on COVID-19 safety for workers and, if “determined to be necessary,” by March issue an emergency temporary standard. Such emergency standards have already been put in place in California, Michigan and Virginia.
“We fully expect this to happen,” said Melanie Paul, an attorney in the OSHA practice of Jackson Lewis PC in Atlanta. “(President) Trump took a more flexible approach to COVID, as it was so new. Now, we are going to see a shift. … The lingering question is how far will the emergency standard go?”
OSHA has fined several hundred businesses over COVID-19 safety since the start of the pandemic. It has been relying in its enforcement efforts on such provisions as its general duty clause, which requires employers to provide a safe work site, and its respiratory standard, which calls for employers to provide personal protective equipment, fit-testing on PPE such as N-95 masks, and training.
In turn, businesses have been relying heavily on the OSHA-endorsed Centers for Disease Control and Prevention guidelines, which include such protocols as mask-wearing, social distancing and contact tracing. While the individual states and municipalities piggy-backed on the requirements, the California, Michigan and Virginia OSHAs created standards that put in place more guidance and fines for noncompliance.
Experts say a federal temporary standard, which would expire in six months, is likely and, depending on what it includes, could cause concerns among employers.
“Certainly it is my fervent hope that some of the elements of the California (emergency temporary standard) do not find themselves in the federal ETS,” said Susan Wiltsie, partner in the Washington D.C. office of Hunton Andrews Kurth LLP.
Among the concerns with the California standard, which at least one business group has described publicly as “sweeping, unworkable and burdensome,” is that it departs from the CDC guidelines.
Pat Tyson, partner and head of the OSHA practice in the Atlanta office of Constangy, Brooks, Smith and Prophete LLP, said a “five-hour long call with 1,000 people” recently showed “it’s clear that there are a lot of issues” with the California standard.
An example of the difference between California and CDC guidelines concerns contact with a COVID-19-positive individual and what constitutes exposure. The CDC guideline describes close contact as that between two people, one of whom is COVID-19 positive, within six feet of each other for more than 15 minutes.
California’s standard is less specific. It describes exposure as applying to anyone in the workplace, even if the person does not work in the same area as the one deemed exposed, triggering the need for all to be quarantined with pay, according to Brent Clark, Chicago-based partner in the labor and employment practice for Seyfarth Shaw LLP.
“That has sent shockwaves through California, as it has certain provisions that are a significant departure from the CDC guidance,” Mr. Clark said, adding that the CDC guidelines have proven valuable to clients in developing safety programs.
“Those programs have been highly effective,” he said. “The controls were working, starting with health screening all the way to mask-wearing and good cleaning and disinfecting. In the safety world we call it layers of protection. Eventually, with so many layers you get a solid wall.”
“One of the issues that has come up with the California standard is (the definition of) outbreaks. … The definitions are a little different,” Mr. Tyson said. “There is a lot of confusion” over who must be quarantined.
Another issue with creating a standard is that changing the rules — as the science of COVID-19 catches up – is difficult, experts say.
For example, Michigan’s standard still calls for a 14-day quarantine, even as the CDC now says the quarantine period should be 10 days, Mr. Clark said. “It’s sitting right there right now in Michigan, and they can’t change it. It’s so clunky administratively,” he said.
This article was first published in Business Insurance.