During our State Unit meetings in September, it had just been announced that OSHA was to issue a Covid 19 vaccine mandate standard for employers with 100 or more employees. We expected that rule to be out by early October. We thought that may be the only issue we had to deal with but that’s all changed.
New Head at OSHA
The Senate, just this week, confirmed Doug Parker as Under Secretary for OSHA. Parker is the former head of Cal/OSHA and is the first confirmed OSHA head in several years. Under the Trump administration, OSHA was only led by acting heads. Parker has also worked as an advocate for labor in previous jobs. We can expect a stronger presence of OSHA with a tilt more toward worker protection the the balance approach we’ve seen in the past several years. If you have friends in CA, ask them how working under Parker has been.
ETS at OIRA
The Emergency Temporary Standard (ETS) for Covid 19 mandatory vaccinations has left OSHA and moved to the Office of Information and Regulatory Affairs (OIRA). An ETS is a standard that, as the name implies, is temporary in nature to protect workers from a threat that is severe and imminent. ETS’s can be issued under certain circumstances and do not have to go through the typical regulatory process of comment and response. They can be issued immediately and for a set period of time.
OSHA has recently sent the ETS to the Office of Information and Regulatory Affairs (OIRA) which is a part of the Office of Management and Budget. This process is the last step in setting the ETS. OIRA can hold on to it for a short or long period of time while it works with other agencies to sift through the possibilities of unintended consequences. All their hearings are internal and private. As far as I know, no language has been leaked. All this is to say that we expect the ETS any time.
OSHA Threatens To Pull State Plan Status
In a rare move, OSHA has begun the process of removing three of the 48 states that have their own OSHA’s from the list. OSHA has delegated worker safety and health regulations to many states under what is known as “State Plans”. These are known as State Plan States. These states must make rules and regs that are at least as stringent as those passed by Federal OSHA. Earlier this year OSHA developed an ETS for the Healthcare industry. Three State Plan States have not adopted rules that mirror or go beyond the Federal ETS. Arizona, Utah and South Carolina have been told they will lose the ability to regulate Safety and Health in the state and have Federal OSHA move in if they don’t comply. Arizona is in the process of a full (not temporary) rule so they have a better case. Utah has been quiet but the Governor of SC has said he will not issue such a rule. This will be interesting to watch. As far as I know Federal OSHA has never taken back a state once it has been delegated the OSH responsibility. NC was put on ‘probation’ of sorts after a fire in a chicken processing plant in the 90’s but that is about it. With the ETS discussed above moving forward this is going to get hotter I’m afraid.
Heat Related Illness Rulemaking Begins
Speaking of hotter…OSHA has recently announced and now formally published the intent to start rule making on protecting workers from heat. Under the auspices of climate change, OSHA has found the need to protect workers form excessive heat. Based on comments in the press release, this is likely to be one of those rules that will be applicable to both General Industry and Agriculture. The agency, this week, published an Advanced Notice of Proposed Rule Making (ANPRM) on Heat Illness prevention. While we have no idea what will be in this rule, they have said in comments that they intend to have it in place for next summer. That will be a heavy lift for the agency. Some have speculated that if the process of rule making gets drug out too far, they will issue an ETS before the summer of 2022. That is speculation but with the new head of OSHA being from California, and Cal/OSHA has a heat standard already I could see how that is a real possibility.
It has been a busy couple of weeks at OSHA. While only the Heat Illness rule is likely to directly apply to cotton gins, the flurry of activity is indicative of what we may have in store for OSHA under this administration. I hope this isn’t the start of something larger like use of Federal Agencies to push an Activist Agenda…