OSHA plans to tackle infectious disease standard in 2022

The Occupational Safety and Health Administration’s stalled infectious disease standard could get a boost next year with the agency seeking to increase its budget for rulemaking by more than 50%.

The push comes, however, as OSHA continues to wait for feedback on its proposed emergency temporary standard for COVID-19.

OSHA’s 2020 and 2021 budgets called for the agency to spend $18 million for safety and health standards and in 2022 it is asking for $28.5 million to help “restore OSHA’s rulemaking and guidance capacity” with a focus on issues including workplace violence and infectious diseases.

The process for creating an infectious disease standard for health care workers specifically began in 2010 and stalled in 2014. Experts say a new standards-creation process would likely be necessary as OSHA seeks to create guidance for all frontline workers.

Meanwhile, safety and legal experts say an ETS to manage COVID-19 workplace safety—a process that was launched on Jan. 21 – is likely still on tap even though the original March 15 deadline has passed.

OSHA on April 27 provided the White House’s Office of Management and Budget with a draft of the ETS, which has been the subject of 49 meetings since. The last meeting had been scheduled for Monday, but three additional meetings were slated for this week.

Legal experts say the emergency rule, which is not subject to the years-long process for creating OSHA standards, must meet the burden that workers are in “grave danger.” With vaccinations and lower case counts countrywide some experts say that OSHA will face legal challenges, mostly from the business community, if the ETS for COVID-19 is adopted.

“I do not believe that the circumstance could allow OSHA to meet the grave danger standard,” said Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP, adding that the ETS remains on the table despite forthcoming challenges. “A grave danger can only be addressed by this emergency rule, and it is hard to categorize it as a grave danger considering case rates, serious outcome rates, vaccination rates … . It would make it difficult for OSHA to meet that threshold.”

Pat Tyson, partner and head of the OSHA practice in the Atlanta office of Constangy, Brooks, Smith and Prophete LLP, wrote in an email that OSHA is likely to move forward with the ETS.

“I think that OSHA would rather be seen as trying to protect workers, even in the face of daunting legal challenges, as opposed to looking like they caved in to business interests,” he wrote.

While case counts are low, “those still working in closed quarters, those working with the public, still continue to get sick and die,” said Marcy Goldstein-Gelb, Boston-based co-executive director for the National Council for Occupational Safety and Health.

“There are still many, many people who are not vaccinated and that puts all workers at risk,” she said. “Having an emergency standard to put a plan in place to reduce the risks continues to be needed, and is a priority moving forward.”

Businesses should expect an ETS, as workers are still dying of COVID-19 and “that’s enough to justify a standard in the eyes of OSHA,” said Gary Pearce, Waterford, Michigan-based chief risk architect at risk and analytics company Aclaimant Inc.

An ETS would also help OSHA push for the prioritization and funding for an infectious disease standard, he said.

Meanwhile, Ms. Goldstein-Gelb said OSHA’s move to create an infectious disease standard, or standards as the agency could move forward with one for health care workers and another for all other workers, would not happen fast enough to protect workers in the ongoing COVID-9 pandemic.

John Ho, Norwalk, Connecticut-based labor and employment attorney and chair of OSHA practice at Cozen O’Connor, said the normal rulemaking process for creating a standard is the way to go, instead of the ETS process, which does not require public hearings to implement.

“If OSHA wants to put together an infectious disease standard … I think the agency has a right to do that within the rulemaking process,” which includes periods for public input, he said. “It’s not rushed and you give stakeholders an opportunity to comment; that’s the way it should normally go.”

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