OSHA’s recent Temporary Emergency COVID-19 Standards have drawn attention to — and created confusion about — how emergency and traditional OSHA standards work.
On December 17, the 6th United States Circuit Court of Appeals upheld the agency’s HTA on COVID-19 vaccination, testing and masking. At the time of going to press, an appeal to the Supreme Court was pending.
In October, participants of a Safety+Health the webinar focused on the latest rules, enforcement trends and OSHA initiatives posed a number of questions. Right here, S+M answers some of them.
How is OSHA’s ETS on COVID-19 vaccination, testing and masking – which does not apply to employers with fewer than 100 workers – legal? This means that an employer with less than 100 employees is not required to follow OSHA fall protection standards.
OSHA standards do not apply to all employers. This includes many members of the public sector, such as state or municipal fire departments. According to the agency, the Occupational Safety and Health Act of 1970 does not cover the self-employed, immediate family members of agricultural employers, and workers “whose hazards are regulated by another federal agency.”
Congress has inserted language into many of its recent appropriations bills prohibiting OSHA from using money to “administer or enforce” its standards to employers who have 10 or fewer employees and have a DART rate. (days of absence, restricted or transferred) lower than the national average.
Employers with 10 or fewer employees who participate in agricultural operations and do not operate a temporary work camp are exempt from OSHA actions, with some exceptions. These exceptions: a death occurs in the workplace, two or more employees are hospitalized, imminent hazards or health risks are identified, or an OSHA investigation stems from an employee complaint.
Similarly, OSHA’s record-keeping standards do not apply to employers who employ 10 or fewer workers (including seasonal, temporary, contractors, etc.) in an entire calendar year. If an employer hires an 11th employee during that year, record keeping standards apply. The agency can ask “partially exempt” employers, like those described above, to submit injury and illness information under 1904.41. The Bureau of Labor Statistics may also request information from these employers, usually for its investigation of industrial injuries and occupational diseases.
Of course, no employer is exempt from reporting worker deaths, hospitalizations, amputations or loss of an eye – also known as reportable injuries.
OSHA has a few thresholds for electronic Form 300A submission. This covers establishments with more than 250 employees or those with 20 to 249 employees in certain high-risk industries, which can be found on OSHA’s website.
OSHA standards must be economically and technologically feasible. In the Improving Workplace Injury and Illness Tracking final rule, published in May 2016 in the Federal Register, the agency says it was considering a threshold of more than 100 employees.
However, OSHA received comments that disagreed with this approach. The agency concluded in the Federal Register notice: “OSHA agrees with commentators who have said that reducing the size criterion to 100 would increase the burden on employers with diminishing benefits.”
In its ETS on COVID-19 vaccination, testing and masking, OSHA chose the 100 employee threshold because it is “convinced that employers with 100 or more employees have the administrative capacity to implement quickly implements the requirements of the standard, but is less confident that small employers can do so without undue disruption.
How long does an ETS remain in effect? How does the renewal process work?
Two parts of the OSH law deal with these issues. Section 6(c)(3) states: “The Secretary shall promulgate a standard under this paragraph no later than six months after the publication of the emergency standard.”
However, Section 6(c)(2) states that an ETS “shall be effective until superseded” by a promulgated standard.
“In other words, employers must continue to comply with the standard and OSHA will continue to enforce the standard,” former OSHA Deputy Assistant Secretary Jordan Barab wrote on his website, Confined space.
On another note, an ETS essentially acts as a proposed rule for a possible permanent standard.
After publishing the ETS on COVID-19 vaccination, testing and masking in the November 5 Federal Register, OSHA has sought public comment through January 19, extending its initial comment period by 45 days. As with any proposed rule, the agency has the opportunity to make changes or withdraw the rule before issuing a final rule.
The “renewal process” for an ETS is similar to that for other regulations, governed by notice and comment procedures, as set out in the Administrative Procedure Act 1946. For many other regulations, the process is long and involves several steps that often take years or even decades. A 2012 study by the Government Accountability Office found that between 1981 and 2010, OSHA needed, on average, more than seven years to develop and issue regulations.
An OSHA flowchart detailing its rule-making process estimates that it takes about 12.5 years to complete the seven steps, which encompass 48 potential steps.
The main stages are a request for information and/or a “pre-rule stage”, followed by an agency issuing a notice of proposed rulemaking or a proposed rule. Typically, comment periods are provided – often spanning 30 to 60 days or more – between each of these stages until a final rule is published.
Executive orders and court rulings have added additional time to the process for some OSHA regulations. This includes reviews by the White House Office of Management and Budget and the Small Business Administration. SBA reviews, also known as SBAR panels, are conducted for regulations that will have “significant economic impact on a significant number of small entities.” However, there is no threshold as to what is “significant” or “substantial”.
In a May 2012 guide on how to comply with the Small Business Regulatory Enforcement Fairness Act of 1996, the SBA states, “No single definition can apply to all rules, given the dynamics of the economy and changes that are constantly occurring in the structure of small businesses. – entity sectors. This is why it is important that agencies strive to conduct sufficient and meaningful analysis when promulgating rules. Preparing the required analysis requires due diligence, knowledge of the small regulated entity community, sound economic and technical analysis, and sound professional judgment.
Does an ETS require Congressional approval?
No. Congress has given executive branch agencies the ability to enact regulations through the aforementioned Administrative Procedure Act.
Congress, however, has a method for disapproving an ETS and other regulations (with some exceptions) via the Congressional Review Act, included in the SBREFA. However, the bar is set quite high. To overturn a settlement, both houses of Congress must approve a joint resolution and the president must sign it. Or, Congress would need enough votes to override a presidential veto after approving a joint resolution.
The ARC also has a countdown clock: Congress has 60 “legislative” days, or days when in session, to issue this joint resolution. On December 8, the Senate approved an ARC resolution to repeal the ETS on COVID-19 vaccination, testing and masking, but the House did not follow suit.