Sens. Marshall, Burr, and Scott’s Opposition Letter to OSHA’s ETS for COVID-19

On May 3, 2021, Sens. Marshall (R-KS), Burr (R-NC), and Scott (R-SC) sent an opposition letter to U.S. Department of Labor Secretary Walsh regarding an issuance of an Emergency Temporary Standard (ETS) for COVID-19 by the Occupational Health and Safety Administration (OSHA). Per their letter:

“An ETS is an extraordinary remedy, designed for situations where workers face a grave danger of such a magnitude that the agency can bypass the public’s right to notice and comment. As our country continues to turn the corner on this pandemic, promulgating harmful and ineffective new compliance standards is unwarranted and will only hamper our economy’s ability to rebound. Instead, we encourage OSHA to expand its compliance assistance and education efforts, especially as the Centers for Disease Control (CDC) is continually updating and changing the scientific understanding of the virus. Government guidance for mitigation and medical understanding related to the coronavirus is rapidly evolving. For example, the CDC updated the list of symptoms associated with COVID-19 at least five times and has reduced the recommended amount of time an individual must quarantine following a “close contact” exposure event.

In response to the fluid circumstances surrounding the ongoing public health crisis, OSHA has provided general, as well as industry-specific guidance, to ensure proper and flexible workplace protections, keeping our economy functional while ensuring that employers and employees alike have clear direction on disease mitigation. Small businesses, who have already borne the brunt of the economic harm from the pandemic, could struggle with implementation of an ETS. Many lack the resources and compliance departments necessary to implement new health and safety regulations. New OSHA regulations at variance with state and local rules will only serve to provide additional economic harm and confusion. Instead, continued robust compliance assistance and guidance would provide these businesses with a better understanding of what the agency expects in order to protect workers, their most valuable asset. Industry specific guidance that takes into consideration the differences between manufacturing plants and construction sites is far more beneficial than a standard that only seeks to penalize employers.

It is well past the time that an ETS would be an effective tool for slowing the spread of the virus. As the number of vaccinated Americans continues to rise and new COVID-19 cases are significantly reduced, the only thing that would be slowed by the issuance of a nationwide ETS is our economic recovery. An ETS only increases OSHA’s enforcement authority. This is not prevention. OSHA needs to reengage with the regulated community to provide updated guidance, education to employers about protecting workers on the job, and start answering the regulated community’s questions about compliance on technical subjects.”