Walsh hits pause on ETS as political will for new COVID-19 rules wanes

Dive Brief:

After missing a March 15 presidential deadline, the development of an emergency temporary standard for COVID-19 has now been put on hold by Labor Secretary Marty Walsh, as the urgency for its issuance declines among rising vaccination numbers and the political will for its implementation has thinned, according to media reports and expert analysis.
Walsh asked OSHA, which was charged with considering whether an ETS was necessary in an executive order from President Joe Biden in January, to put the process on hold so that relevant materials could be updated "to reflect the latest scientific analysis of the state of the disease," according to a Bloomberg Law article. Walsh ordered the update based on the Centers for Disease Control and Prevention analysis and the latest information regarding the state of vaccinations and coronavirus variants, according to the article.
Experts say the legal bar for issuing an ETS has been raised as COVID-19 case numbers and deaths have declined in the U.S., and vaccinations have increased, with one-third of the population having received at least one shot as of April 7. "In order to issue an ETS, there must be grave danger to employees," Gabrielle Sigel, a partner at Chicago-based law firm Jenner & Block, told Construction Dive. "But the evidence of the danger is changing. The vaccines are changing the facts surrounding the ETS."

Dive Insight:

Worker advocacy groups reacted swiftly to the news.

"Workers can't wait," said Jessica Martinez, co-executive director of the National Council for Occupational Safety and Health, in a statement. "We know that workers still face the risk of COVID-19 infections in their workplaces, and we know that these infections can spread to neighborhoods, families and communities."

The issuance of an ETS, which would supply a single, minimum standard for employers to follow in protecting employees from COVID-19 at work, has been an issue of debate since early in the pandemic. OSHA declined to issue an ETS during the Trump administration, even as worker groups unsuccessfully sued it to do so.

Employers have said an ETS isn't necessary, since they're already been following CDC guidance on COVID-19 mitigation, though some have complained that varying state requirements have cost them money by having to comply with patchwork rules.

Now, with Walsh in place as labor secretary for only two weeks, time may have run out for an ETS to be put in place. "This is not the kind of thing you'd want necessarily an acting secretary to issue," said Sigel, who wrote a recent Law360 article on ETS hurdles.

Meanwhile, the reasoning given for pausing the development of an ETS has experts questioning whether it has become a moot point.

"The focus on the state of the disease suggests Secretary Walsh and his team at OSHA realize that there is no longer an emergency due to the rate of vaccinations throughout the country and many of the U.S. population will be vaccinated in a matter of months," wrote James Sullivan, co-chair of the OSHA-Workplace Safety Practice at Philadelphia-based law firm Cozen O'Connor, in a posting on legal knowledge-base site JD Supra. "That eventuality presents a significant roadblock for OSHA."

At the same time, now may also not be the most opportune moment for the Biden administration to push for more workplace rules, as it tries to sell its $2 trillion American Jobs Plan to companies across the U.S.

"You have to think about what kind of political air would be taken up with this debate about an ETS that the Biden administration may not want to be taken up right now," Sigel said. "Especially if they're looking for support from employers, such as those in the construction industry, for the infrastructure plan, for instance."