September 21, 2021

Volume XI, Number 264


September 20, 2021

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Anticipating a COVID-19 Emergency Temporary Standard in 2021

Acontentious issue during the recent presidential campaign was the Trump administration’s handling of the COVID-19 pandemic. No matter where one fell along the spectrum of supporters and critics, there was no denying the wide gulf of positions on the topic.

That gulf was clearly evident in the months-long dispute over the extent to which the Mine Safety and Health Administration (MSHA) and Occupational Safety and Health Administration (OSHA) should involve themselves in implementing COVID-19 safety protections and guidelines in the workplace. Against Democratic and labor demands for the adoption of an emergency temporary standard to control the spread of COVID-19 in the workplace, MSHA and OSHA instead relied on existing standards and the posting of safety and health best practices based on recommendations from the U.S. Centers for Disease Control and Prevention.

While legislative action and lawsuits were unsuccessful in altering the agencies’ opposition to an emergency temporary standard, that opposition is probably about to change.

Emergency Temporary Standard

Based on a review of the Biden campaign’s worker protection platform, it is fairly clear that MSHA’s and OSHA’s position on a COVID-19 emergency temporary standard will undergo a dramatic transformation when the new administration takes office on January 20, 2021. That platform specifically pledges the Biden administration “will immediately issue an emergency temporary standard” as part of the new administration’s pandemic response program.

Although as of December 2020 there did not appear to be any specifics regarding what the emergency temporary standard would look like, four states—CaliforniaMichiganOregon, and Virginia—had already provided templates in the form of their own emergency temporary standards. It is likely that the MSHA and OSHA standards will borrow from those models.

With that in mind, it is anticipated that an MSHA or OSHA emergency temporary standard might contain some or all of the following requirements:

  • Conducting a workplace exposure assessment

  • Developing a written COVID-19 preparedness and response plan (which includes requirements for social distancing, masks, worker notice, and workplace sanitizing)

  • Establishing guidelines for the use of personal protective equipment and/or engineering controls (when social distancing is not feasible)

  • Implementing employee, contractor, and visitor screening procedures

  • Conducting employee training regarding safe work procedures

  • Submitting reports to MSHA/OSHA of positive exposures

What to Watch

Even though many mine operators and employers already have a number of these workplace practices in place, it will be important to follow the development of the emergency temporary standard closely.

For instance, to differing degrees, the state emergency standards establish a graduated scale of heightened requirements for jobs that fall into different levels of exposure. In Virginia, specifically, employers are required to classify each job task that can expose personnel to COVID-19 as “very high,” “high,” “medium,” or “lower” risk. The higher-risk classifications can add more onerous mandates, such as increased air handling and ventilation requirements.

Where particular tasks could fall into that scale in a future federal temporary standard could depend largely on an analysis of a variety of risk factors (e.g., number of employees and/or proximity of employees).

There is also a possibility that an MSHA or OSHA temporary standard might require employers to seek the input of the hourly workforce in the development of a COVID-19 mitigation program. The Oregon standard, for example, requires that employers solicit “participation and feedback” on the mandatory risk assessment and training.

It is possible that some of the anticipated requirements of any future emergency temporary standard may be modified as the national vaccination effort progresses. As we approach President-elect Joe Biden’s inauguration, it is likely that more detailed information will be fleshed out about the parameters of the emergency temporary standard. The early dissemination of that information will be designed to enable the new administration to hit the ground running, which will undoubtedly mean some very tight compliance deadlines.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 13

About this Author

William Doran, Ogletree Deakins Law Firm, Washington DC, Labor and Employment Litigation Attorney

Bill Doran’s practice is concentrated in safety and health law and litigation.

Bill represents and advises companies with respect to issues arising under Federal and State Safety and Health Statutes. He represents companies in accident investigations, special investigations, audits and discrimination investigations conducted by OSHA, MSHA, and state agencies. He also represents companies in litigation before the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission and the federal courts.

Margaret S. Lopez, Ogletree Deakins, mining companies lawyer, gravel industries attorney
Office Managing Shareholder

Margo Lopez is the Managing Shareholder of the Washington, D.C. office and a long time workplace safety lawyer representing mining companies in the coal, metal, stone, sand and gravel industries. She is a highly successful litigator and regularly presents company and industry cases before Administrative Law Judges, Federal Review Commissions and the United States Court of Appeals. In a recent high profile Court of Appeals case, Margo effectively saved the mining industry from severe limitations on its rights to manage its workforce, involving potentially millions of...