OSHA Emergency Temporary Standards: What's That All About?
All Insurance Industry Insights on Monday, November 1, 2021
For those of us familiar with health & safety in the workplace, we don’t always see much change in regulations as the years go by. My colleagues and I used to joke that regulatory change took longer than some careers. On the other hand, we also onboarded the new folks by training them how and where to find regulatory information, since you never knew when things might change. So, I guess it shouldn’t be a surprise to any of us to see an emergency temporary standard in today’s ever-changing pandemic landscape… But how is an emergency temporary standard different from other standards? And what’s this standard development business all about?
While it may seem reactionary, OSHA’s rulemaking follows a very strict process which usually (and understandably) can take some time. A draft standard goes through advisory committees and gets recommendations before being published in the Federal Register. The public then has a designated time frame – usually at least 60 days – to submit comment or request a public hearing to the “Notice of Proposed Rulemaking”. After this is done, OSHA then publishes the final text in the Federal Register and the standard becomes enforceable going forward based on its effective date.
Under certain limited conditions, OSHA is authorized to set emergency standards that take effect right away for a temporary period of time. This is done when OSHA determines that a standard is needed to protect workers who are “in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful”. An Emergency Temporary Standard (ETS) is published in the Federal Register for six months, which also serves as a proposed permanent standard. After expiration, OSHA has six months to take the standard through the same process as outlined above to become permanent.
Also important to note is that a standard may be challenged in court, which can delay any part of the process. And not all ideas end up becoming finalized -- OSHA may also determine that a standard (or amendment to an existing standard) is not needed.
OSHA's COVID-19 Emergency Temporary Standard
OSHA’s COVID-19 Emergency Temporary Standard (ETS) (29 CFR 1910 Subpart U) was published in the Federal Register on June 21, 2021, and is set to expire on December 21, 2021. While there’s discussion of another ETS for mandatory COVID-19 vaccinations, nothing has been published to-date and there is much speculation over various criteria that may be included if one is published.
While every organization needs to determine their own approach to potential pending regulations, a sound methodology is to become familiar with CDC and OSHA best-practice recommendations regarding COVID-19 so you can be prepared if and when the next standard is put in place.
More information can be found on OSHA's website, from the CDC, and Back to Work Safely.