Business people wearing masks in a meeting

Last night, after weeks of delay, the Department of Labor (DOL), Occupational Safety and Health Administration (OSHA) sent an emergency workplace safety rule designed to protect workers from COVID-19 to the Office of Management and Budget (OMB), putting the final review process before it is public in motion. The rule comes as many states such as Texas and Mississippi have already acted to relax COVID safety rules. The OSHA rule will act as a floor for the states that have implemented their own COVID specific workplace protections.

“Today, OSHA sent draft standards to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review,” the DOL spokeswoman said in an emailed statement. “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.”

The DOL’s ruling has been anticipated for weeks by members of Congress, unions, and businesses. On January 21, on his first full day in office, President Biden gave OSHA a deadline of March 15 to determine if new rulemaking was necessary, and if so, to issue a new workplace safety rule. After the deadline passed, Labor Secretary Marty Walsh requested additional layers of review of the rules “based on CDC analysis and the latest information regarding the state of vaccinations and the variants.”

Unions and worker safety advocates have criticized the delay, arguing that mandatory rules for employers to safeguard essential workers from the virus are still necessary as many Americans have yet to be vaccinated and new variants of Covid-19 continue to spread.

Opponents of the rulemaking argue that additional workplace safety rules are unnecessary because of the rising rate of vaccinated workers and that additional protocols will hinder businesses.

Democratic members of the House have been pressing the Biden administration for answers on the status of the rule. on Monday, Michigan Democratic Reps. Debbie Dingell, Rashida Tlaib and Andy Levin pressed Biden for an explanation on the status of the rules, as Covid-19 infections and ICU capacity have surged in the state in recent weeks.

It is not known how long OMB’S review will take. according to sources OMB’s review process will take a minimum of two weeks.

The House Committee on Education and Labor, Subcommittee on Workforce Protections will be holding a hearing this Friday, April 30 on the status of coronavirus workplace safety rules promised by Biden. DOL officials and occupational health experts will testify during the hearing. 

Many employers in states that no longer have mask mandates have been considering relaxing their mask policies, especially for fully vaccinated individuals. The OSHA standard is likely to address masks and the necessary considerations for discontinuing their use. Employers may wish to pause such changes briefly, pending issuance of the OSHA COVID rules.  Michael Best has developed a COVID 19 audit program, which will be adjusted based on the new rules. For those interested in the COVID program, more information is available here.