House Democrats push for emergency OSHA COVID-19 standard

By a narrow 214-207 margin, House Democrats passed a $2.2 trillion stimulus bill called the HEROES Act, 2.0, essentially a slimmer version of the $3 trillion HEROES Act that was passed in May and blocked by Republicans due to the cost.

As states and businesses begin opening in a modified manner, the HEROES Act would set national standards for workplace safety as it relates to COVID-19. Specifically, it would require OSHA to develop and issue a temporary final standard (TFS) to protect employees from workplace exposure to the virus. This standard would cover health care sector employees, first responders, and “other employees at occupational risk of exposure.” This final requirement appears to cover any other business that is open while the national emergency remains in place, giving the standard broad applicability.

In developing the TFS, which would be due one week from enactment of the HEROES Act, OSHA is to consult with the Centers for Disease Control and Prevention and the National Institute for Occupational Safety and Health. On enforcement, OSHA is granted discretion if it determines an employer cannot feasibly meet certain requirements as long as the employer is implementing alternative methods and measures to protect employees.

States that use their own OSHA-approved state plan as their safety standard must adopt a similar temporary standard within 14 days of enactment. The HEROES Act exempts the TFS from normal regulatory analysis and comment requirements under the Regulatory Flexibility Act, the Paperwork Reduction Act, and the usual regulatory review and budgeting executive orders. The TFS would remain in place until a permanent standard is issued within two years of enactment.

Another important component of opening the economy is ensuring the safety of workers and the public in the transportation sector. The HEROES Act would require the airline industry, AMTRAK, and public transit operations to require all staff and customers wear a mask or other face covering while onboard, issue masks and hand sanitizer to all employees, and ensure that transport vehicles, facilities, and stations are cleaned and sanitized frequently.