Even after two years of the COVID-19 pandemic, there are no legally binding national workplace safety regulations in place.
Occupational Safety and Health Administration’s mandate for vaccines or tests was struck down by the Supreme Court earlier this month, and a set of temporary rules for healthcare facilities expired at the end of the previous calendar year.
A permanent COVID safety standard is being developed in response to a lawsuit filed by a number of large health care unions, according to the Occupational Safety and Health Administration (OSHA). However, this could take some time.
COVID-19 safety rules, which OSHA refers to as a standard, to protect health care workers from the virus are expected to be implemented within six to nine months, the agency has stated. Even that, however, may be an overly optimistic timetable for the project.
“It’s taken years for OSHA to issue any permanent standards around a health exposure in recent decades,” said David Michaels, a professor at the George Washington University School of Public Health. “It’s taken years for OSHA to issue any permanent standards around a health exposure.”
The Occupational Safety and Health Administration (OSHA) began developing a standard for airborne infectious diseases in 2010, under Michaels’ leadership, in response to the H1N1 flu pandemic.
“OSHA is required to complete a series of analytical tasks. “They have to demonstrate that everything they’re asking for is both economically and technologically feasible,” he explained.
Even after the Trump administration took over and put the project on hold seven years later, the work was still not completed.
Among the revelations is “just how weak the OSHA law is,” said Deborah Berkowitz, a former Georgetown University law professor who is now a fellow at the university. Berkowitz also worked at the Occupational Safety and Health Administration (OSHA) during the Barack Obama administration.
According to her, “when the law was originally written, Congress anticipated that it would take them six months.” However, the process of developing a new standard now takes seven to ten years, in part because of the lengthy public hearings process.
“OSHA is required to respond to almost every single comment that is received,” Berkowitz said. “It’s an extremely time-consuming process.”
According to James Brudney of Fordham University Law School, the process of developing emergency rules for health care facilities could be sped up because OSHA has already completed the preliminary research necessary to do so. However, he predicts that there will be legal challenges to the decision.
According to the attorney general, it can take a year or even two years to work their way through the court of appeals and reach a final judgment.
Moreover, given the Supreme Court’s signaling of a more limited view of OSHA’s role in the pandemic, it is possible that more of these challenges will arise in the future.