The Occupational Safety and Health Administration, after months of delay, released standards to protect essential workers from COVID-19 Thursday, but those policies were scaled back significantly to apply only to health care settings.
In a major win for corporate lobbyists, OSHA issued separate guidance that offers largely unenforceable recommendations for other high-risk workplaces.
The pared-back policies bring a quiet close to a saga that began over a year ago, when employees first raised concerns about catching the highly infectious respiratory virus in cramped conditions in workplaces such as Amazon.com Inc. warehouses, correctional facilities, meat processing plants, and grocery stores.
Labor advocates and industry lobbyists had previously shared with CQ Roll Call that they believed two separate enforceable policies were in the works: specialized infection control standards for health care settings like hospitals, and another for more general workplaces like warehouses and retail stores.
Advocates hoped for an “emergency temporary standard,” a regulation meant to protect workers quickly from an urgent threat by circumventing typical regulatory procedures. The policy released Thursday for health care settings falls into that category but the guidance for general industry does not.
The emergency standard for health care facilities calls for measures long understood to mitigate the spread of the virus that causes COVID-19, including minimum ventilation requirements, masking, social distancing and contact tracing, and a rule prohibiting retaliating against workers who raise concerns.
President Joe Biden called for stronger federal protections for essential employees on the campaign trail last year as Americans lauded workers' courage in continuing to serve during the pandemic.
Congressional Democrats had criticized the Trump administration for paltry fines for employers and few work site inspections as crowded workplaces exacerbated the pandemic’s disproportionate impact on Blacks and Latinos.
But even under the new administration, the policies stalled for months beyond a March 15 date established in an executive order the president signed on his second day in office. The rules languished first at OSHA and then at the Office of Information and Regulatory Affairs, which oversees all regulatory policies and conducts interagency reviews.
White House Press Secretary Jen Psaki has defended the delay by saying the administration was working to get the rules right.
At the same time, the rules attracted a surge of lobbying from some of the most influential industry and trade associations in Washington.
The White House’s budget experts at OIRA took dozens of meetings on the issue, hearing presentations from the U.S. Chamber of Commerce, National Association of Manufacturers, and the American Hospital Association, as well as worker advocates and unions like the AFL-CIO.
Labor Secretary Marty Walsh said at a press conference Thursday the decision to “tailor” the emergency temporary standard to just the highest risk health care settings was tied to rising vaccination rates and Centers for Disease Control and Prevention guidance that recommends most people do not have to wear masks indoors or remain socially distant after vaccination.
“As you can imagine, it’s been very tricky with the virus and guidance changing over the last few months,” Walsh said.
About 50 percent of eligible Americans have been fully vaccinated, and 61 percent have gotten at least one dose, according to CDC data.
Walsh said OSHA and CDC may revisit the guidance if more infectious and deadly variants spread.
But some advocates are concerned that vaccine coverage is still too spotty and has not reached enough Blacks and Latinos to justify scrapping the legally enforceable rules.
“This is no time to let down our guard,” said Union of Concerned Scientists Executive Director Kathleen Rest. “Infection rates are declining, but the pandemic is not over.”
Debbie Berkowitz, a workplace safety watchdog at the National Employment Law Project, estimates the vaccination rate at meat and poultry processing plants stands at around 40 percent, lower than the national average. Berkowitz points out the high turnover in many plants that rely on temporary workers and the challenges of reaching immigrant communities.
Acting Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick responded to that criticism by saying the new suggestive guidance for these workplaces are “designed to focus on the unvaccinated workers.”
Four states — California, Michigan, Oregon and Virginia — have implemented their own emergency temporary standards, and 10 states have issued other enforceable safety protocols, according to the National Employment Law Project.
About 10.3 million workers fall under the emergency temporary standard for health care settings, according to Frederick.
“An ETS is a major step toward requiring accountability for hospitals who consistently put their budget goals and profits over our health and safety,” said National Nurses United President Zenei Triunfo-Cortez.
Business groups were pleased with the Biden administration's decision although some influential Democrats were not.
“The National Retail Federation is pleased with OSHA's emergency temporary standard being tailored to just health care settings," said NRF’s Vice President of Government Relations and Workforce Development Ed Egee. "A one-size-fits-all emergency regulation would have distracted from retailers’ existing safety efforts that have effectively protected employees and customers from the dangers of COVID-19."
House Appropriations Committee Chair Rosa DeLauro, D-Conn., complained about both “the failed leadership of the previous administration," which did not set an OSHA COVID-19 standard, and the Biden administration's move to narrow the policy from earlier plans.
"While I am glad the Biden Administration has taken this long-overdue step to set an OSHA ETS for health care workers, the decision to omit non-health care workers, such as farmworkers and those in meatpacking plants, is shortsighted," said DeLauro, saying she would work with the Labor Department on the issue. "I will continue to push for protections for all workers."