NGFA joins coalition outlining concerns about OSHA’s COVID-19 Emergency Temporary Standard 

As a member of the Coalition for Workplace Safety, NGFA submitted comments to the Occupational Safety and Health Administration (OSHA) on Aug. 20 outlining concerns with the agency’s COVID-19 Emergency Temporary Standard (ETS) issued in June. 

OSHA published the ETS to protect healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where workers are likely to have contact with someone infected with the virus. The agency monitors and assesses the need for changes in the ETS every 30 days, including whether to expand the ETS to all industries.

In comments to submitted to OSHA, the coalition, which is led by organizations including the U.S. Chamber of Commerce, the National Association of Manufacturers and the Associated Builders and Contractors, noted that it believes the circumstances do not warrant the issuance of a COVID-19 ETS.

“The arrival and dissemination of three vaccines and increased protective measures have undermined OSHA’s conclusions about a grave danger, and OSHA provides no specific explanation about why the ETS is necessary..,” the comments state. 

Several concerns outlined in the coalition’s comments are summarized below: 
Stakeholder involvement: OSHA is not required to provide notice or a public comment period for an ETS. However, OSHA had an opportunity (at least four months) to solicit feedback from stakeholders but made no efforts to do so. OSHA also refused to open a docket for written comments.  
Grave danger: Even limited to healthcare, OSHA has not demonstrated that a grave danger exists as required for it to issue an ETS, i.e., that fully vaccinated healthcare employees are at any greater level of risk than fully vaccinated employees elsewhere. All other workplaces are governed by OSHA guidance.
Necessity: OSHA has not established that the ETS is necessary, per the statutory requirement, to address the grave danger, particularly given the extensive state and local requirements that had been in place.  
OSHA rulemaking authority: The ETS contains three requirements that the coalition believes exceed OSHA’s statutory authority: the medical removal protection benefits provision; the requirement that employers maintain a COVID-19 Log that includes cases without a workplace nexus; and the inclusion of a provision that permits OSHA to pursue cases of alleged retaliation against employers through Citations and Notifications of Penalty.