The Occupational Safety and Health Administration (OSHA) has fielded complaints from both labor unions and management-side associations regarding its COVID-19 Emergency Temporary Standard (ETS), highlighting stakeholders’ doubts in the ETS’s utility and effectiveness as deadlines tick by.

Two separate petitions filed by labor unions on June 24, 2021, challenged the limited scope of the ETS, arguing that its application only to the healthcare industry—and only to those employers and workplaces that do not fit into one of several exceptions—is too narrow to address real safety concerns. An unpublished ETS draft released just days later, on June 28, 2021, revealed that OSHA had indeed originally deemed COVID-19 a “grave danger” to workers in a far larger number of industries. Courts have thus far exercised considerable deference to OSHA’s previous pandemic-related ETS choices, but the unpublished draft may create a new wrinkle.

At the same time, healthcare groups have also pushed back against the implementation of the ETS in a letter to OSHA, calling for additional time to comply with the exceedingly complicated standard.

A summary of the ETS’s requirements and exceptions can be found here.

IN DEPTH

TWO PETITIONS FILED BY LABOR ORGANIZATIONS

On June 24, 2021, two separate petitions seeking federal court review of OSHA’s ETS were filed.

The United Food and Commercial Workers International Union (UFCW) and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed a joint petition for review of the ETS in the US Court of Appeals for the District of Columbia Circuit (DC Circuit). The unions assert that the ETS “fails to protect employees outside the healthcare industry who face a similar grave danger from occupational exposure to COVID-19.”

National Nurses United (NNU) filed a separate petition for review in the US Court of Appeals for the Ninth Circuit. NNU’s petition does not list specific concerns with the ETS guidance. NNU voluntarily withdrew its petition on July 7, 2021, without giving a reason for the withdrawal.

PREVIOUS PETITION DENIED

Last year, in June 2020, AFL-CIO sought a writ of mandamus to compel OSHA to issue an ETS. The DC Circuit denied AFL-CIO’s petition, giving OSHA “considerable deference” with respect to its decision as to whether to issue an ETS. The DC Circuit held that OSHA had reasonably determined that an ETS was not necessary (at that time) to maintain hazard-free working environments.

NEW DRAFT ETS GUIDANCE RELEASED

On June 28, 2021, an unpublished draft of OSHA’s ETS guidance was uncovered. The draft revealed that OSHA had originally planned for the ETS to cover all workers in all industries, rather than exclusively applying to certain settings within the healthcare industry. The draft’s expansive scope appears to have been narrowed during its review by the White House’s Office of Information and Regulatory Affairs (OIRA) prior to publication.

Unions now point to the previously unpublished draft to support their argument that OSHA moved too quickly in narrowing the scope of its guidelines. While OSHA has not formally responded to the unions’ petitions, OSHA may argue that its revised ETS resulted from evolving evidence and the CDC’s announcement of more lenient mask recommendations while the ETS was under OIRA review.

MORE TIME REQUESTED BY HEALTHCARE PROVIDER GROUPS

The ETS requires covered employers to comply with the majority of its requirements by July 6, 2021.

Two provider groups—the American Hospital Association (AHA) and the Medical Group Management Association (MGMA)—wrote separate letters to OSHA in the days leading up to this deadline to request additional time to implement new compliant procedures. Specifically, the AHA requested that OSHA delay the ETS compliance dates by an additional six months and extend the public comment deadline by an additional 30 days. The MGMA went further, requesting that OSHA rescind the standard altogether, but the group also requested in the alternative that OSHA delay the ETS compliance dates. OSHA has yet to respond to the extension requests.

While the first of two deadlines has passed, it remains yet to be seen whether OSHA will heed the management-side concerns and delay implementation of the more burdensome requirements, including installing physical barriers and assessing HVAC systems.

DENIAL OF MEATPACKING WORKERS SUIT APPEALED

Meanwhile, a group of anonymous meat plant workers at Maid-Rite Specialty Foods will appeal the dismissal of their suit against OSHA by the US District Court for the Middle District of Pennsylvania. The workers sought to compel OSHA to address what the workers claimed to be hazardous working conditions, including a lack of protective gear and social distancing. The court granted OSHA’s motion to dismiss the complaint, however, because no OSHA inspector had actually found any COVID-19-related “imminent dangers” present in the plant. The lower court’s decision will be reviewed by the US Court of Appeals for the Third Circuit.

OSHA STAYS THE COURSE

Despite the attacks from all sides, OSHA has kept its pressure on healthcare employers to comply with its ETS on the predetermined timeline: adopting a model safety plan by July 6, 2021, with all aspects becoming enforceable as of July 21, 2021.

Nicholas Meyer, a summer associate in the New York office, also contributed to this article.