HR Policy Calls for Congress to Reject a Rigid One-Size-Fits-All COVID Standard

May 29, 2020

HR Policy encouraged Congress to reject calls for OSHA to issue an emergency temporary COVID-19 standard and instead support the agency’s current approach of issuing industry-specific guidance based on the latest CDC recommendations.

The coalition letter recommended OSHA continue enforcing the general duty clause requirement to provide a safe workplace and provide employers with the guidance they need to protect workers from the coronavirus.  Meanwhile, HR Policy joined several other business groups in a letter to the CDC seeking specific guidance.  (See separate story.)

At a House hearing this week, Subcommittee chair Rep. Alma Adams (D-NC) said OSHA “has been largely invisible.  It has failed to develop the necessary tools it needs to combat this pandemic and it has failed to fully use the tools it has.”

However, ranking member Rep. Bradley Byrne (R-AL) noted that during previous pandemics in the Bush and Obama administrations “OSHA didn’t issue a new standard but, instead, enforced existing standards and issued guidance, which in turn could be the basis for action against an employer under the General Duty Clause of the OSHA statute.”

The House-passed HEROES Act would require OSHA to issue an emergency temporary COVID-19 standard in seven days.  Meanwhile, the AFL-CIO has sued OSHA to issue a rule.

OSHA has also announced it is stepping up in-person inspections in areas where COVID-19 infections have slowed after halting most in-person inspections at the height of the pandemic last month.

Outlook:  It is unclear if the debate over this issue will be resolved in the next COVID-19 bill that is likely to pass this summer or how the courts will rule on the AFL-CIO’s petition for OSHA to issue an emergency rule.  However, should the Democrats win the White House in November, OSHA is likely to begin developing an infectious disease standard for future pandemics.