OSHA Issues a Draft of the COVID-19 Emergency Temporary Standard

On April 26, 2021, the Occupational Safety and Health Administration (OSHA) officially sent to the White House a long awaited draft of their COVID-19 Emergency Temporary Standard (“ETS”). Once issued, OSHA’s ETS will be the most concrete guidance regarding COVID-19 received from OSHA to date. It will also provide OSHA the ability to issue citations to employers who fail to comply with the ETS’s requirements.

The Department of Labor issued the following statement regarding the draft ETS:

“Today, OSHA sent draft standards to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review. OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right.”

Although the public is not likely to see the proposed standard before it goes into effect, there are a few things we think employers should take note of in advance:

• It will likely require employers to develop some type of written COVID-19 Prevention Program outlining the steps they are taking to prevent employee exposure.
• It will likely be influenced by the California Division of Occupational Safety and Health’s (Cal/OSHA) stringent COVID-19 ETS as President Biden’s nomination for head of OSHA is Doug Parker who also oversaw implementation of Cal/OSHA’s COVID-19 ETS.
• It will likely require states with their own state OSHA plans to adopt the ETS or adopt a similar rule that is at least as effective as the ETS. This means that even if you are located in a state with its own OSHA plan, you will likely be responsible for complying with the ETS’s requirements.

While OSHA’s definition of “working diligently” is up for interpretation – as the Executive Order called for OSHA to finalize and issue the ETS by March 15, 2021 – the announcement brings the finish line into view. The DOL did not indicate when a final rule will be issued, but it is anticipated to be released within the next two months. Stay tuned and we will keep you informed as we learn more about the rule and when it will be implemented.