Sens. Marshall, Burr, Scott Call on Biden Admin to Stop Stifling Economic Recovery with Nationwide COVID-19 Emergency Temporary Standard

(Washington, D.C., May 4, 2021) – Yesterday, U.S. Senators Roger Marshall, M.D. (KS), Richard Burr (NC), and Tim Scott (SC) sent a letter to U.S. Secretary of Labor Marty Walsh and U.S. Office of Management and Budget (OMB) Acting Director Shalanda Young, warning them of the negative effects that a nationwide Emergency Temporary Standard (ETS) will have on our nation’s economic recovery. With the national seven-day average of new cases at nearly a quarter of where they were at the beginning of the year, and vaccinations across the country on the rise, an ETS only adds burdensome regulations that slow reopening and run counter to the frequently changing guidance from the Centers for Disease Control. The U.S. government can achieve similar workplace safety outcomes through updating guidance, continued education and employer outreach, and increased technical assistance without hindering America’s economic comeback. In part, the letter reads:

“An ETS is an extraordinary remedy, designed for situations where workers face a grave danger of such a magnitude that the agency can bypass the public’s right to notice and comment. As our country continues to turn the corner on this pandemic, promulgating harmful and ineffective new compliance standards is unwarranted and will only hamper our economy’s ability to rebound… As our pharmaceutical industry continues to ramp up production and more Americans are becoming fully inoculated, the danger to workers is quickly dissipating. As the number of vaccinated Americans continues to rise and new COVID-19 cases are significantly reduced, the only thing that would be slowed by the issuance of a nationwide ETS is our economic recovery.”

Full Text of Letter:

May 3, 2021

The Honorable Marty Walsh
Secretary of Labor
United States Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210

The Honorable Shalanda Young
Acting Director
United States Office of Management and Budget
725 17th St NW
Washington, DC 20503

Dear Secretary Walsh and Acting Director Young,

We write today in opposition to the issuance of an Emergency Temporary Standard (ETS) for COVID-19 by the Occupational Health and Safety Administration (OSHA). An ETS is an extraordinary remedy, designed for situations where workers face a grave danger of such a magnitude that the agency can bypass the public’s right to notice and comment. As our country continues to turn the corner on this pandemic, promulgating harmful and ineffective new compliance standards is unwarranted and will only hamper our economy’s ability to rebound. Instead, we encourage OSHA to expand its compliance assistance and education efforts, especially as the Centers for Disease Control (CDC) is continually updating and changing the scientific understanding of the virus.

Government guidance for mitigation and medical understanding related to the coronavirus is rapidly evolving. For example, the CDC updated the list of symptoms associated with COVID-19 at least five times and has reduced the recommended amount of time an individual must quarantine following a “close contact” exposure event. In response to the fluid circumstances surrounding the ongoing public health crisis, OSHA has provided general, as well as industry-specific guidance, to ensure proper and flexible workplace protections, keeping our economy functional while ensuring that employers and employees alike have clear direction on disease mitigation.

Small businesses, who have already borne the brunt of the economic harm from the pandemic, could struggle with implementation of an ETS. Many lack the resources and compliance departments necessary to implement new health and safety regulations. New OSHA regulations at variance with state and local rules will only serve to provide additional economic harm and confusion. Instead, continued robust compliance assistance and guidance would provide these businesses with a better understanding of what the agency expects in order to protect workers, their most valuable asset. Industry specific guidance that takes into consideration the differences between manufacturing plants and construction sites is far more beneficial than a standard that only seeks to penalize employers. Static regulations that do not address the fluidity of the situation do not adequately protect workers when recommendations change, sometimes daily.

Currently, the seven-day average of new cases is a quarter of where it was in the beginning of the year, and all Americans over the age of 16 are eligible to receive a vaccination. As our pharmaceutical industry continues to ramp up production and more Americans are becoming fully inoculated, the danger to workers is quickly dissipating. It is well past the time that an ETS would be an effective tool for slowing the spread of the virus.

As the number of vaccinated Americans continues to rise and new COVID-19 cases are significantly reduced, the only thing that would be slowed by the issuance of a nationwide ETS is our economic recovery. An ETS only increases OSHA’s enforcement authority. This is not prevention. OSHA needs to reengage with the regulated community to provide updated guidance, education to employers about protecting workers on the job, and start answering the regulated community’s questions about compliance on technical subjects.

OSHA issued a National Emphasis Program related to COVID-19. The agency chose to ignore its own 90-day stakeholder outreach requirement to the detriment of proactively engaging with employers. We urge you to reinstate the requirement and provide a response outlining a new stakeholder outreach plan to the regulated community. We also encourage you to work with stakeholders to address concerns raised in the meetings surrounding Executive Order 12866.

Sincerely,

Roger Marshall, M.D.
United States Senator

Richard Burr
United States Senator

Tim Scott
United States Senator

Background:

The Department of Labor sent a draft ETS to OMB on April 27th, and OMB’s Office of Information and Regulatory Affairs will review the draft for at least two weeks. DOL’s Occupational Safety and Health Administration (OSHA) has only issued nine ETS since the agency was created, and five have been overturned by the courts for failing to meet the requirements for issuance. The last time OSHA issued an ETS was in 1983. 

###