Summary: The COVID-19 Every Worker Protection Act, introduced by House Education and Labor Committee Chairman Bobby Scott (D-VA), requires the Occupational Safety and Health Administration (OSHA) to issue an “Emergency Temporary Standard” and permanent standard to protect some workers from exposure to Coronavirus in some workplaces. An Emergency Temporary Standard (ETS) is a workplace safety rule that can be issued by OSHA for a period of six months and, unlike a permanent rule, does not take into account public comment or review. States with their own workplace safety plans would be required to also adopt an equal standard.
Per the bill, an ETS must be issued within seven days of enactment of this bill to cover workers in the health care sector, firefighters and emergency responders, and “other employees at occupational risk of such exposure.” The bill does not define which sectors or jobs would be covered by the “other employees” language. OSHA would also be required to finalize a similar permanent standard for Coronavirus exposure within two years of enactment of the bill.
Background: A 2012 review by the Government Accountability Office (GAO) of significant OSHA workplace safety standards issued from 1981 through 2010 calculated nine years and seven months as the average time for significant OSHA standards to be finalized. This timeline is due to the rulemaking process and timeline that includes steps like soliciting public comment as well as judicial review.
Under these measures, employers would be required to adopt an anti-retaliation whistleblower policy and develop and implement their own infectious disease exposure control plan, after getting input from employees or their employees’ union representatives.
At this time, OSHA has not issued an ETS or pursued a permanent rule. OSHA has, with the CDC and U.S. Food and Drug Administration, issued and updated 20 industry-specific guidelines for worker groups and employers, ranging from airline operations to seafood processing – following the precedent OSHA set under previous administrations in the response to other threatening viruses such as MERS, H1N1, and Ebola.
On May 18, 2020, the AFL-CIO filed suit against the Department of Labor and OSHA to require issuance of an ETS. The U.S. Court of Appeals for the District of Columbia rejected the lawsuit, saying, “In light of the unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, OSHA reasonably determined that an ETS is not necessary at this time.”
Critics of this bill argue that an OSHA ETS would be a static mandate immediately made out of date in the changing environment of control and prevention recommendations
The Director of CDC’s National Institute of Occupational Safety and Health (NIOSH), Dr. John Howard, said at a May 28, 2020, hearing, “Our guidance changes rapidly, and I always tell people don’t print out CDC guidance from your printer because it may be out of date the next time you go to the website.”
LETTER: Letter to House opposing requiring OSHA to Issue an Emergency Temporary Standard
May 28, 2020
Coalition on Workplace Safety, U.S. Chamber of Commerce
FACT SHEET: The COVID-19 Every Worker Protection Act of 2020
House Education and Labor Committee majority, EdLabor.house.gov
PRESS RELEASE: Byrne Opening Statement at Hearing on Workplace Safety During COVID-19
May 28,2020, Committee on Education and Labor Republicans
TESTIMONY: Examining the Federal Government’s Actions to Protect Workers from COVID-19
May 28, 2020, Committee on Education and Labor Subcommittee on Workforce Protections
Dr. John Howard, M.D., Director, National Institute for Occupational Safety and Health
REPORT: Workplace Safety and Health: Multiple Challenges Lengthen OSHA’s Standard Setting
April 2, 2012, U.S. Government Accountability Office
REPORT: Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19
July 27, 2020, Congressional Research Service
Scott D. Szymendera, Analyst in Disability Policy