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Prospective OSHA head could push tough COVID-19 standard

Doug Parker

The Occupational Safety and Health Administration has still not issued an emergency temporary standard for COVID-19 worker safety as directed by President Joe Biden’s executive order in January, but the agency is closer to having a leader who could push for a tough measure, experts say.

On April 9, President Biden announced the appointment of Doug Parker, currently leader of the California Division of Occupational Safety and Health, to helm OSHA. While unions welcome his appointment — which must be confirmed by the Senate — others are concerned that OSHA under his leadership will focus on enforcement rather than education and that an emergency temporary standard under his direction will be burdensome for employers.

“He’s qualified, and I don’t think he’ll have difficulty getting confirmed,” said Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP. “The concerns … of industry will be the same things that made him attractive to the Biden administration — a strong union background.”

“Without a doubt, OSHA under Parker is going to be prescriptive. … (OSHA) is going to be an explicit ally of the less powerful worker,” said Gary Pearce, Waterford, Michigan-based chief risk architect at risk and analytics company Aclaimant Inc. 

Mr. Parker, who has been the chief of Cal/OSHA since 2019, spent nearly four years as the executive director of Worksafe Inc., an Oakland, California-based nonprofit that advocates for workers’ rights. He also served as deputy assistant secretary for policy in the Mine Safety and Health Administration during the Obama administration.

“I would expect to see under his direction increased penalties and increased violations,” with an increased “focus on enforcement and maybe less focus on ... resolving an issue,” said Cressinda Schlag, of counsel in the Austin, Texas, office of Jackson Lewis P.C. 

Cal/OSHA under Mr. Parker’s watch issued its emergency temporary standard in November, which introduced expansive requirements for employers including plans addressing COVID-19 communication, hazards, personal protective equipment, testing, quarantining and infection prevention. Industry groups challenged it, but a superior court judge declined a request for a preliminary injunction to halt its enforcement.  

Although the March 31 deadline for a federal standard to be released came and went, many still believe one is forthcoming. Days before Mr. Parker’s appointment, U.S. Secretary of Labor Marty Walsh announced that he was putting the plan to develop a COVID-19 standard on pause.

“We know exactly how Doug Parker feels about the need for a COVID ETS because he led the fight in California,” Mr. Conn said. “Not only does his nomination make the issuance of a rule more likely, it also raises the possibility of a more onerous rule than we had been hoping for.”

Some of the requirements in Cal/OSHA’s standard don’t have science behind them to support placing “additional substantial compliance burden on employers who are already struggling to recover from the pandemic,” Ms. Schlag said.

“If you look at the California standard there are two or three things that were kind of lightning rods … and alarmed the business community the most,” Mr. Pearce said. These included the unfunded mandate that employers compensate workers who are quarantining and site-wide workplace COVID-19 testing based on three or more exposures at the employer’s expense, he said. 

“If three of your employees got sick at spring break, you now have to undertake something that could be hundreds of thousands of dollars of testing,” Mr. Conn said. “That’s a killer.”

Another issue with the California standard is some of the provisions concerning engineering controls aren’t supported by science and don’t recognize that “there is an entire suite of options to control the spread,” he said.

More insurance and workers compensation news on the coronavirus crisis here.