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Biden administration faces heat from Democrats over delay issuing workplace safety standard

A farmworker last year in Santa Paula, Calif. (Marcio Jose Sanchez/AP)

The Biden administration is more than six weeks late on a self-imposed deadline to set a workplace safety standard for the coronavirus, angering labor advocates who had hoped the White House would move quickly to fill a void left by the Trump administration.

President Biden issued an executive order on his second day in office that directed the Labor Department to issue an emergency temporary standard, or ETS, by March 15, if it found one to be necessary.

The pandemic redefined where essential work happens in America and brought recognition to seasonal agricultural workers under the H-2A visa program. (Video: Luis Velarde/The Washington Post)

Labor Secretary Marty Walsh told The Washington Post on March 24 that he had been briefed on the issue, but the proposal appears to have been delayed in recent weeks, drawing rare rebukes from Democrats and worker advocates, who have been pushing for Labor to do more since the onset of the pandemic.

The department announced late Monday that it was sending a draft of the standard, which was not released to the public, to the White House’s Office of Management and Budget for review.

“[The Occupational Safety and Health Administration] has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right,” the Labor Department said in a statement.

The White House did not respond to a request for comment.

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The move was hailed with cautious optimism by activists, as the time frame for its implementation remains unclear.

“Make no mistake, an emergency OSHA standard will save lives,” AFL-CIO President Richard Trumka said in a statement. “We’re grateful for the Department of Labor’s work in getting the standard to this point, and we urge swift issuance of the rule. … As working people continue to keep our country afloat more than a year into this pandemic, the Biden administration must continue to prioritize our safety and ensure we are protected from this virus on the job.”

Pressure on the White House to make good on its promises has been growing from the left.

The House’s labor committee announced it would hold a hearing, set for Friday, to question labor agency officials about the proposal. A group of 15 Democratic lawmakers, including Sens. Elizabeth Warren (Mass.), Tammy Duckworth (Ill.), Sheldon Whitehouse (R.I.) and Mark R. Warner (Va.), sent the president a letter Monday requesting information about the delay and urging the administration to move forward with the standard.

“More than a month has now passed since your deadline for issuing an ETS,” the senators wrote. “The consequences of each day of delay are dire — and potentially fatal — for front line workers who have toiled without enforceable health or safety standards specific to covid-19 since the beginning of this pandemic.”

Three House Democrats from Michigan, Reps. Debbie Dingell, Rashida Tlaib and Andy Levin, sent the White House a similar letter Monday, albeit slightly more urgent in tone, citing their state’s current outbreak.

Activists and former workplace safety officials, who spent much of the past year fuming about the Trump administration’s decision not to issue an ETS during the pandemic, have been disappointed by the lack of action so far from the Biden administration.

“Every day of delay means more workers will be exposed, and the risk of virus transmission will not be decreased,” said David Michaels, a professor at the George Washington University who headed OSHA under President Barack Obama.

The Biden White House faces a potentially complicated legal outlook for the proposal, in part because of the Trump administration and also the new stage of the pandemic, with more than 40 percent of the public receiving at least one vaccine dose.

Under Trump, labor officials declined to issue a safety standard early in the pandemic, opting instead for guidelines — recommendations that were not legally enforceable and were watered down with phrases such as “if feasible” and “when possible.” That meant businesses had more leeway to decide what standards to implement on the job for workers, unless local officials decided to set stricter rules. Some states, including Virginia, California and Oregon, drafted their own regulations for businesses.

But inaction at the federal level over the past year, combined with the availability of vaccines, could make it harder for the Labor Department to now argue that the crisis continues to be an emergency and a grave danger in workplaces, policy experts said.

Labor advocates and some Democrats say the lack of action by Labor over the past year is partly to blame for hundreds of thousands of workers falling ill. Some of the largest virus outbreaks in the country were centered around workplaces, including meatpacking facilities, a driver of infections across the country.

OSHA faced a couple of lawsuits, from workers as well as from the AFL-CIO labor federation, about its lack of robust action during the pandemic.

Advocates hope an OSHA standard, which could last for six months, will mandate basic safety measures such as mask-wearing, hand-washing, social distancing and communication requirements about confirmed cases in workplaces, under the threat of serious financial penalties.

Groups that oppose the safety standard, including the U.S. Chamber of Commerce, say the proliferation of vaccines has weakened the case for the workplace rules.

“The covid pandemic is a public health emergency that happens to have a workplace component,” said Marc Freedman, the chamber’s vice president of workplace policy. “The solution is to solve the public health emergency. You solve that, you solve the public health problem.”

Freedman pointed out that the understanding of the virus’s transmission has evolved — with less focus on surface contamination now compared with a year ago, for example. He added that what’s relevant now wouldn’t necessarily be pertinent in six months.

During a conference call organized by workplace safety advocates on Tuesday, some shared stories about how the lack of an OSHA standard had left workers less safe on the job.

Pascaline Muhindura, a nurse in Kansas City, spoke about a colleague who had died of the virus last year, after there were shortages of protective gear at the hospital where she worked. She said their hospital was continuing to ration N95 masks more than a year into the pandemic.

“OSHA could not cite my employer,” she said about the death of her colleague, Celia Yap-Banago. “We need a federal OSHA ETS that requires our employers to protect our health and safety at work. We welcome the news that President Biden’s administration has taken the next step. It’s not too late to protect nurses and front-line workers.”

The hospital did not immediately respond to a request for comment.

Under Biden, the Labor Department has moved to strengthen workplace guidance for the virus and sought to increase enforcement action against employers who retaliate after workers complain about unsafe conditions.