Rulemaking

OSHA’s forthcoming COVID-19 vaccination rule is getting a cautious reception from labor and work-safety groups, with several saying “the devil is in the details” and urging officials to carefully balance concerns for worker safety and privacy while maintaining calls for a broader workplace health rule.

Republican governors are vowing to oppose President Joe Biden’s newly announced plan for OSHA to mandate strict COVID-19 vaccination requirements for private-sector employers, threatening court challenges and executive orders aimed at blocking any workplace vaccine requirement.

Attorneys say employers should be ready to quickly resume compliance with a host of Obama-era OSHA policies linked to its contentious electronic reporting rule, including anti-retaliation measures that barred many workplace safety incentives, as the agency prepares to propose a new version of the regulation as soon as December.

OSHA has reworked a long-standing “interpretive rule” to specify that proving whistleblower retaliation requires showing that protected activity was the “but-for” cause of an employer’s discriminatory action, based on several recent Supreme Court decisions the agency had already incorporated into less-formal guidance.

Worker-safety and environmental groups are seeking alternative paths to a comprehensive emergency temporary standard (ETS) for heat illness including a push for state-level policies, citing concerns that OSHA lacks the staff or resources to quickly craft such a rule alongside its top priority of responding to the COVID-19 pandemic.

OSHA’s deputy regulatory chief told an Aug. 31 conference the agency plans to let its COVID-19 emergency temporary standard (ETS) expire after a six-month window, noting that while future developments could lead officials to reverse course, its plan “at this point” is to allow the rule to sunset before proposing a permanent disease rule.

Labor groups are urging OSHA to rework and make permanent its temporary COVID-19 standard, including calls from nurses to mandate vaccination for health workers while general-industry unions hope to extend the rule to all sectors and decouple it from Centers for Disease Control and Prevention (CDC) guidelines.

Health care employers say OSHA’s COVID-19 emergency temporary standard (ETS) conflicts with Centers for Disease Control and Prevention (CDC) guidance and say recent findings supports loosening key provisions in the rule, alongside calls to delay implementation by up to six months and scrap plans to enact a permanent version of the ETS.

A recently published study suggests that existing California OSHA (Cal/OSHA) standards for heat-related illness (HRI) do not adequately protect the state’s agricultural workers and recommends reforms similar to those labor groups and others are seeking in their petition for an OSHA heat standard.

An alliance of worker groups, environmentalists and others is petitioning OSHA to craft an emergency temporary standard (ETS) for heat illness even though the agency has begun to craft a permanent rule on the subject, arguing that the years-long regulatory process is too slow to protect workers from heat waves driven by climate change.