By Kevin Stawicki

Law360 (April 27, 2020, 10:13 PM EDT ) As the novel coronavirus pandemic keeps much of the U.S. on lockdown, the Occupational Safety and Health Administration is taking fire for not using its power to issue emergency rules making employers adopt infectious disease plans for the workplace. But experts say because of legal hurdles and resource constraints, the chance of OSHA flexing its regulatory muscles is slim to none.

Labor Secretary Eugene Scalia has said that nonbinding guidance OSHA has issued related to COVID-19 is sufficient, but Democratic lawmakers and labor advocates want the federal worker safety watchdog to do something it hasn't done in decades: issue an "emergency temporary standard."

David Michaels, an epidemiologist and George Washington University professor who headed OSHA during the Obama administration, said conditions for workers have deteriorated to the point where a regulatory ramp-up is a necessity.

"One of the reasons things have gotten so bad for workers is the failure of the administration to issue and enforce regulations that protect workers," Michaels told Law360. "There is no agency that requires employers to provide adequate protections for workers. A step toward that would be an emergency temporary standard issued by OSHA for all workers."

But putting new regulations in place — and keeping them there — is easier said than done. Here, attorneys talk about the obstacles that are likely factoring into OSHA's unwillingness to invoke emergency authority to craft regulations addressing the pandemic and why it's up to Congress to make the emergency temporary standard a reality.

Regs Mean Resources, for Both OSHA and Employers

Like most of the federal government, OSHA has been cautious about issuing new regulations during the pandemic and has insisted that its nonenforceable guidance for how specific industries should protect their employees is enough to maintain workplace safety.

After House Democrats urged the agency in January to issue an emergency temporary standard only for the health care industry, Loren Sweatt, OSHA's principal deputy assistant secretary, warned against making health care providers juggle new compliance obligations and their COVID-19 response.

"The healthcare industry fully understands the gravity of the situation and is taking the appropriate steps to protect its workers while responding to the public health emergency," Sweatt wrote in a letter to lawmakers. "Working on a formal rulemaking at the same time that the healthcare industry is responding to the COVID-19 public health emergency is counterproductive to both the public health response and robust stakeholder engagement."

On March 9, lawmakers introduced a bill in the House to require the agency to issue the emergency temporary standard only for the health care industry. Their attempts to get provisions of the bill into the second stimulus package ultimately failed after they were met with strong industry opposition. The American Hospital Association said the mandate "would be impossible to implement in hospitals due to the severe lack of availability of N-95 respirators. If this provision were to be enacted, hospital inpatient capacity would be dramatically reduced."

In addition to the strain on health care providers, getting an emergency standard ready would tax OSHA's resources, too. The roughly 2,000-employee agency would have to pull internal resources from those putting out guidance to focus on notice-and-comment rulemaking, said Bradford T. Hammock, co-chair of Littler Mendelson PC's workplace safety and health practice group.

"The concerns with the emergency temporary standard are whether the agency, because of the speed with which they would proceed with this, will have adequately thought through and considered all of the potential impacts," Hammock said. "Within OSHA, there is a directorate of standards and guidance. Both are together in one directorate, so to the extent you pull resources from providing guidance to providing standards and regulatory initiatives, you're not going to be able to get information as quickly as you would normally be able to."

James Brudney, a Fordham University Law School professor who previously served as chief counsel of the U.S. Senate Subcommittee on Labor, said it's not clear what the agency's resource power is or whether the agency has enough specialists, but that drafting a standard "would not necessarily have to be rocket science."

"There's quite a bit that has been put out in the way of CDC guidelines and state judgments by governors and state agencies," Brudney said, referring to the federal Centers for Disease Control and Prevention.

Michaels said the problem doesn't really come down to resources because the agency started working on an infectious disease standard during his tenure, and then the Trump administration shelved it. New regulations also don't necessarily mean a flood of enforcement that would spread OSHA's resources too thin, he added.

"This is not about enforcement; it's about changing employers' behavior, but standards change employer behavior even without inspections," Michaels said, adding that he believed any hesitation about the new regulation is "an aspect of the deregulatory DNA of the Trump administration."

6-Month Deadline Looms

Last Tuesday, House Democrats proposed a bill that would require the agency to issue the emergency temporary standard for not only the health care industry but all employers. Even if Congress succeeds, and OSHA were forced to put out emergency regulations, issuing the temporary set of rules wouldn't be the end of the story.

Norton Rose Fulbright LLP partner Josh Henderson said that after six months, the agency would have to follow up and issue a permanent standard through notice-and-comment rulemaking. It generally takes many years after the issuance of a temporary standard for an agency like OSHA to compile the necessary evidence to defend a permanent version, according to Henderson.

"The emergency temporary standard is only in effect for six months and has to be replaced by a permanent standard," Henderson said. "Although the agency could keep it in effect for six months, it would need the evidence to turn it around into a permanent standard. In that abbreviated time frame, it's really a difficult hurdle for OSHA to meet."

Even though House Democrats have floated bills seeking an emergency temporary standard that would give the agency two years to compile the evidence to convert it into a permanent standard, that's still a tough ask, Henderson added.

But according to Fordham Law's Brudney, in six months, companies, unions and scientists will also have amassed enough evidence about the need for the regulations, which ones should stay and which ones should be scrapped.

"That's why the notice-and-comment is so important," he said. "You get some parameters out there now and you have a structure to move forward to develop a permanent approach that may have more adjustability."

Court Battles Await

Lawsuits attacking any emergency regulations OSHA were to issue for the pandemic would be a virtual certainty, and predicting how such challenges might play out is difficult.

The fact that OSHA hasn't used its temporary emergency standard authority in 30 years since it regulated asbestos, lead and vinyl chloride means that there is a dearth of recent court rulings that would shed light on exactly how federal judges would view the scope of OSHA's power in a pandemic.

"There's not a lot of good history on [the emergency temporary standard], nor is there a lot of judicial review that provides guidance," said Emily A. Spieler, a professor at Northeastern University School of Law. "Calls for emergency standards have often been denied, including during the Obama administration. But then we've not had a pandemic before."

Norton Rose's Henderson said the government would face a high bar to show that there was "grave danger" to employees that necessitated the new regulations.

But Ann Rosenthal, a veteran attorney who served as associate solicitor for occupational safety and health at the Department of Labor's Office of the Solicitor from 2014 to 2017, said that in light of the current COVID-19 situation, a temporary emergency standard would be on solid legal ground.

"If Congress required the agency to issue the emergency temporary standard, then Congress would be saying there's a grave danger," Rosenthal said. "I don't think there's too much evidence required in that case. It's a lot harder and more time-consuming to issue an emergency temporary standard without that congressional requirement, but I've never seen a situation like this one before and I wouldn't say that OSHA can't do it."

"Given the number of worker deaths and infections that have already been documented from COVID-19 since February, you could hardly have a clearer case for a worker health emergency standard," said Brudney. "Yes, it's a high bar, but it is met here."

--Editing by Jill Coffey and Emily Kokoll.

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