OSHA Permanent Rule on Covid Now at the White House for Review, as Beltway Lawyers Work to Continue Biden’s Mass Infection Policy

By Lambert Strether of Corrente.

“Always be present in the flesh.” –C.P. Snow, The New Men

Patient readers, this post was a little bit slower to arrive than should be, because I got a bright idea for a value-add (see Tables 1 and 2, below) right in the middle of doing a routine aggregation of current news (of which there is not a whole lot) and past NC posts. Let me begin with a brief summary of the state of play. From the National Law Review:

The Occupational Safety and Health Administration’s (OSHA) COVID-19 rulemaking process has been quiet for a while, but recent activity appears to indicate we are now entering the final phase of a permanent COVID-19 standard for healthcare.

Recall, however, that the first draft of OSHA’s Emergency Temporary Standard (ETS), of which the current rule is a descendant, mandated comprehensive non-pharmaceutical interventions for all workplaces with over 100 employees, but the Biden administration nixed that in favor of vax-only. The Supreme Court then further restricted the mandate to health care workers.So two branches of goverment, one dominated by liberal Democrats, the other by conservative Republicans, worked hand-in-glove to support the Biden administration’s policy of mass infection without mitigation. More:

[I]n June of 2021, OSHA implemented an emergency temporary standard for medical facilities, which mandated those sites follow requirements around personal protective equipment, ventilation, physical barriers and other protections to reduce the spread of COVID-19. Eventually, the agency withdrew the rule in December 2021, stating that it was working expeditiously to issue a final standard while also considering its broader infectious disease rulemaking.

OSHA’s public hearing for the rulemaking was held from April 27, 2022 to May 2, 2022, and since then we have been waiting. However, on December 7, 2022, the OMB updated its website to reflect that it officially has OSHA’s “Occupational Exposure to COVID-19 in Healthcare Settings” standard listed as “under review.”

OSHA’s permanent standard would fill the void left from other agencies like the U.S. Centers for Disease Control and Prevention (CDC), which in the last several months has diluted its COVID-19 recommendations. The messaging from these relaxed recommendations was amplified in the fall when President Biden publicly declared that the pandemic was over in the weeks before the midterm elections.

Overall, OSHA’s self-imposed expeditious timeline seemed to be out of place in an environment that was less concerned about regulating COVID-19.

And now perhaps a little CT:

However, OSHA’s delayed delivery of the rule to OMB was arguably intentionally scheduled, as it falls squarely within a time frame during which we have been hearing about so many more COVID-19 cases than we have heard about for months. It has been a pattern for the last few years that in the winter months we see a substantial uptick in airborne respiratory diseases, like influenza, the common cold, and COVID-19. With respect to COVID-19, the annual uptick is followed by more stringent CDC recommendations. OSHA’s December 2022 delivery is likely betting that the pattern will remain the same and the proposed permanent standard will be reviewed in an environment with COVID-19 concerns at their peak.

The idea! The bottom line, however, it that nobody — except doubtless a few insiders who are keeping mum — knows anything, because nobody (except OSHA and OMB) know what’s in the permanent rule. Bloomberg amplifies:

Meetings with the White House’s Office of Information and Regulatory Affairs over the Occupational Safety and Health Administration proposal are currently scheduled through at least Jan. 6.

OIRA’s review is usually the last outside analysis of a rule before it’s cleared for release, and the scheduled sessions are a last chance for advocates to make their case before that review is concluded.

OSHA hasn’t yet released the rule’s (RIN:1218-AD36) proposed text, leaving advocates to guess what requirements will be included.

We now allow Conn Maciel Grey, a Beltway “boutique” law firm specializing in matters OSHA, to pick up the story:

Last week, on December 8th, the Office of Management and Budget (OMB) updated its website to reflect that it officially has OSHA’s “Occupational Exposure to COVID-19 in Healthcare Settings” Standard “under review.”

The website reflects that OMB received the proposed final rule from OSHA on December 7th. Here is a link to the page for this rulemaking and below is all the relevant information reflected on OMB’s website….

All of that is to say, this rulemaking is close to the finish line, but not at it. There should still be one last opportunity to help shape the final rule before it is issued.

Now that we have a Regulation Identifier Number (RIN) for this rule, we will be able to formally request EO 12866 stakeholder meetings with OIRA. On behalf of our Coalition, we plan to pursue at least three different stakeholder meetings – one for retail pharmacies, another for manufacturing and industrial facilities with on-site medical clinics, and one for construction contractors that engage in construction, renovation, or maintenance work at hospitals.

As it turns out, these “stakeholder meetings” are, as Conn Maciel Grey says, available on the OIRA (OMB) website. OIRA also lists the meetings held concerning the rule, including who requested the meeting, and who attended the meeting. I have re-worked their data, and put all meetings subsequent to the OMB’s December 7 announcement into two tables. There are thirteen meetings in all, on nine dates. Two meetings are yet to be held. Table 1 lists who requested each meeting. Table 2 lists private (non-governmental) people who attended each meeting, as well as any documents they presented. (Of course, a full flex-net analysis would link government names to private names, but that’s way beyond the scope of this post.) Let us see what we can glean from each table!

Table 1: RIN: 1218-AD36 Meeting Requestors

Date/Time	Requester	Name	Client
12/16/22, 12:00 PM	AFL-CIO	Rebecca Reindel
12/16/22, 04:00 PM	U.S. Chamber of Commerce	Marc Freedman
12/19/22, 02:30 PM	National Nurses United	Julia Santos
12/20/22, 11:00 AM	FMI-The Food Industry Association	Peter Matz
01/03/23, 02:00 PM	Permanent COVID-19 Standard for Healthcare Rulemaking Coalition	Eric Conn	Construction industry impacted by standard
01/04/23, 01:00 PM	Permanent COVID-19 Standard for Healthcare Rulemaking Coalition	Eric Conn	Retail industry
01/04/23, 03:30 PM	National Association of Home Builders	Felicia Watson	Construction Industry Safety Coalition
01/05/23, 10:00 AM	American Hospital Association	Nancy Foster
01/05/23, 01:00 PM	Permanent COVID-19 Standard for Healthcare Rulemaking Coalition	Kathryn McMahon	Manufacturing
01/06/23, 11:30 AM	Permanent COVID-19 Standard for Healthcare Coalition	Beeta Lashkari	Association of Dental Support Organizations
01/06/23, 01:00 PM	American Dental Association	Robert Burns
01/09/23, 04:00 PM	AHCA/NCAL [1]	Courtney Bishnoi
01/17/23, 04:00 PM	LeadingAge[2]	Jonathan Lips

NOTES to Table 1

[1] A nursing home trade association.

[2] An assisted living trade association.

(I’m putting the obscurantist “RIN: 1218-AD36” in the table titles in the hope that it will show up in search when the text of the rule is finally released.)

What can we glean from Table 1? I think the first thing to notice is the Godzilla v. Mothra on 12/16/22: AFL-CIO v. the Chamber of Commerce. Whether this is a mere sop to the AFL-CIO — who, after all, just got their keister handed to them with the rail workers “deal” — I don’t know. Next, National Nurses United get their own day, showing a measure of clout, but also showing that labor is not united, or else all unions would been at the table in the same meeting. Further, this “Permanent COVID-19 Standard for Healthcare Rulemaking Coalition” entity is a front organization conjured up by the slyboots at Conn Maciel Grey; Eric Conn is head of OSHA practice there. Finally, after NNU, it’s solid trade groups (a meeting structure that treats unions as just one vertical interest group among others, as opposed to being — hear me out — representatives of the working class as a whole. Of course, the national unions don’t believe that any more than anyone else in the Beltway, so I don’t know why I even bring it up).

Now we turn to Table 2. As you can see from the Status column, there are only two meetings to go; from Table 1, nursing home and assisted living trade associations. Also in the Status column, you will see a note ([x]) for any documents the requestor brought; there is a brief quote from each document in the NOTES section following the table.

Table 2: RIN: 1218-AD36 Meeting Attendees

Status	Date	Attendees
Completed[1]	12/16/2022, 12:00 PM	Lisa Baum, New York State Nurses Association; Ellie Barberash, American Federation of State, County and Municipal Employees; MK Fletcher, AFL-CIO; Rocelyn de Leon-Minch, National Nurses United; Sara Markle-Elder, American Federation of Teachers; Azita Mashayekhi, International Brotherhood of Teamsters; Roy McAllister, United Food and Commercial Workers International Union; Kelly Nedrow, American Federation of Teachers; Travis Parsons, Laborers’ International Union of North America; Rebecca Reindel, AFL-CIO; Milly Rodriguez, American Federation of Government Employees; Elizabeth Royal, Service Employees International Union; Eunice Salcedo, National Education Association; Steve Sallman, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers; Ken Seal, International Union of Painters and Allied Trades of the United States and Canada; Micki Siegel de Hernandez, Communications Workers of America; Geraldine Stella, Public Employees Federation; Cynthia Stephens, United Food and Commercial Workers International Union; Jane Thomason, National Nurses United; Caleb Willard, United Food and Commercial Workers International Union; Juan Zuniga, United Steelworkers;
Completed[2]	12/16/2022, 04:00 PM	Marc Freedman, U.S. Chamber of Commerce.
Completed[3]	12/19/2022, 02:30 PM	Nicole Daro, National Nurses United; Deborah Burger, National Nurses United; Eleanor Thomason, National Nurses United; Rocelyn De Leon-Minch, National Nurses United; Ken Zinn, National Nurses United; Julia Santos, National Nurses United.
Completed[4]	12/20/2022, 11:00 AM	Peter Matz, FMI – The Food Industry Association; Stephanie Harris, FMI – The Food Industry Association; Christine Pollack, FMI – The Food Industry Association.
Completed[5]	01/03/2023, 02:00 PM	Eric J. Conn, Conn Maciel Carey; Beeta B. Lashkari, Conn Maciel Carey; Wesley Wheeler, National Electrical Contractors Association.
Completed[6]	01/04/2023, 01:00 PM	Evan Armstrong, Retail Industry Leaders Association; Eric J. Conn, Conn Maciel Carey; Bryan Dunwoody, Albertson’s; Nicholas Gonzalez, Kroger Pharmacies; Mary Ellen Kleiman, National Association of Chain Drug Stores; Beeta B. Lashkari, Conn Maciel Carey; Kayla McFeely, National Association of Chain Drug Stores; Matt Walker, Harris Teeter.
Completed	01/04/2023, 03:30 PM	Cheryl Ambrose, National Roofing Contractors Association; Jeff Buczkiewicz, Mason Contractors Association of America; Kevin Cannon, Associated General Contractors of America; Raffi Elchemmas, Mechanical Contractors Association of America; Melissa Peters, Littler Mendelson, PC; Greg Sizemore, Associated Builders and Contractors; Felicia Watson, National Association of Home Builders of the United States.
Completed[7]	01/05/2023, 10:00 AM	Nancy Foster, DC, NONE; Mark Howell, DC, NONE; Roslyne Schulman, DC, NONE; Ashley Thompson, DC, NONE.
Completed	01/05/2023, 01:00 PM	Matiiapa Chindori-Chininga, American Chemistry Council; Beeta B. Lashkari, Conn Maciel Carey; Kathryn M. McMahon, Conn Maciel Carey; Laura Walther, American Chemistry Council.
Completed	01/06/2023, 11:30 AM	Chris Borgerding, Association of Dental Support Organizations Adam Brown, Aspen Dental Heath Hall, Heartland Dental Jeannie Henry, Aspen Dental Gray McGinnis, Association of Dental Support Organizations Beeta B. Lashkari, Conn Maciel Carey Kathryn M. McMahon, Conn Maciel Carey Ben Mezer, Affordable Care Gary Pickard, Pacific Dental Jeffrey Suarez, Aspen Dental Jeffrey Troupe, Aspen Dental.
Completed[8], [9]	01/06/2023, 01:00 PM	Dr. Hana Alberti, Senior Director, Center for Practice Policy; Dr. Marcelo Araujo, Chief Science Officer; Mr. Robert Burns, Senior Manager, Strategic Advocacy and Public Policy; Dr. Raymond Cohlmia, Executive Director; Dr. George Shepley, President.
Scheduled	01/09/2023, 04:00 PM	—
Scheduled	01/17/2023, 04:00 PM	—

NOTES to Table 2

[1] No documents.

[2] From the Chamber of Commerce: “OSHA’s Notice fails on several different levels. It reopens a comment process for a standard that has been withdrawn and is no longer a viable regulatory vehicle for modifications. Even if the ETS was subject to modifications, OSHA’s Notice does not include critical aspects of proposed regulatory changes, starting with the absence of regulatory text and including other rulemaking components such as E.O. 12866 review and analysis of impacts on small businesses as required by the RFA/SBREFA. Finally, the changes OSHA says it is considering are not clear, largely because there is no associated regulatory text. For all of these reasons, OSHA must cease any further activity toward issuing a finalized ETS.”

[3] From National Nurses United: “On behalf of nearly 225,000 registered nurses, National Nurses United (NNU), the largest labor union and professional association for registered nurses in the United States, urges the White House, the Office of Management and Budget, and the Office of Information and Regulatory Affairs to complete the review of the OSHA permanent Covid-19 standard as quickly as possible and to ensure that OSHA issues a strong permanent Covid-19 standard that fully recognizes the scientific evidence regarding SARS-CoV-2 and goes beyond weak guidance issued by the U.S. Centers for Disease Control and Prevention (CDC).”

[4] From the Food Industry Association: “We do not believe OSHA’s COVID-19 standard should apply to retail pharmacies, including those located in grocery settings.”

[5] From the National Electrical Contractors Union: “We urge OSHA to maintain an exclusion of construction activities in any permanent COVID-19 standard developed.”

[6] From the Retail Industry Leaders: “The COVID-19 Standard Should Exempt Pharmacy Operations in Retail Settings.”

[7] “NONE” for Nancy Foster is amusing; Foster works for the American Hospital Association. The others are similar.

[8] From the American Dental Association: “There does not appear to be a grave danger or significant risk of health care workers being exposed to COVID-19 in dental settings.”

[9] From the American Dental Association, a JAMA study: “These findings suggest that implementing an adaptive testing cadence based on the risk status of individuals may be effective in reducing the risk of SARS-CoV-2 infection within an institution. In this study, involvement in clinical activities did not pose additional risk of SARS-CoV-2 infection compared with other in-person activities in the presence of these control measures.”

What can we glean from Table 2? First, all of the documents, except for the NNU’s 96-page tome, which is undated, were produced for the April round of stakeholder meetings, by Conn Maciel Grey for their clients. Second, the AFL-CIO didn’t supply any documents at all, which could be realism or laziness and flaccidity, I’m not sure which. However, when the NNU produces a detailed plan for mitigation, and the AFL-CIO is silent, that’s a pretty strong indication of where the AFL-CIO stands. Next, if you look at the “ask” in each document, you will see that none of the trade groups want any more regulation whatever — not even the dentists or pharmacists — and that includes masks, ventilation, layered protection, and so on. In other words, mass infection without mitigation is what business wants, and what business wants is what the Biden administration wants. (You might consider questioning your local dentist or pharmacist on what their trade group is up to. I’ve heard enough stories about unmasked dentist offices to know what’s really going on out there.) Finally, the Chamber of Commerce doesn’t make a health argument as well; they claim that the entire regulatory process is illegitimate, showing a certain purity of resolve.

* * *

Of course, it’s hard without being in the room — and since when does the general public get to be in one of these rooms? — to predict what the outcome will be. The National Law Review has a theory:

While the timing of the delivery may be noteworthy, it is the contents of the final standard along with its issuance date that are the big-ticket questions. As to the text of the proposed regulation, we currently do not have much information as it has not been released. However, we can glean some insight if we assume the standard follows the outline of the healthcare emergency temporary standard (ETS) without any changes. If that is the case, then we can expect it to require covered employers to have comprehensive, top-to-bottom, infection protection programs, which would be required to cover, among other things, hazard assessments, screening requirements, personal protective equipment (PPE), physical distancing, physical barriers, cleaning and disinfection, ventilation, notification of COVID-19 cases, return to work, training, etc.

Conn Maciel Grey agrees:

[I]f the standard follows the outline of the Healthcare ETS, without any changes, it will require covered employers to have comprehensive, top to bottom, infection protection programs, covering, among other things, hazard assessments, screening requirements, standard and transmission-based precautions, PPE, physical distancing, physical barriers, cleaning and disinfection, ventilation, notification of COVID-19 cases, medical removal and associated protection benefits, return to work, training, etc. We do not think OSHA included all of these elements in the final rule, as the state of the pandemic is very different from what it was back in June 2021 when the Healthcare ETS took effect. Plus, OSHA did signal when it reopened the rulemaking record that it was at least considering softening the rule in certain areas.

The other significant questions for which we do not have solid answers is the scope of covered employers. Our Coalition dedicated most of our advocacy to discouraging OSHA from expanding the healthcare standard to cover non-traditional workplace settings. Or, said another way, to keep the standard focused on in-patient hospital settings.

I don’t think either National Law Review or Conn Maciel Grey are correct (although to be fair to the latter, their clients are probably better off safe than sorry, and then of course there are those billable hours). The Biden Administration throughout its life has relentlessly followed a policy of mass infection without mitigation, as exemplified by CDC’s policies (and no, vague nicey-nice about masks and NPIs from CDC count for nothing after two years of systematic denigration and shaming, let alone major administration figures failing to walk the walk). So I don’t see “transmission-based precautions” being on the table at all; the Biden administration does not oppose transmission at all! Nor does the Administration support unions (except, to be fair, at the last resort, the NLRB), so even if the AFL-CIO had an ask, it’s dubious that OIRA would let it go through.

So, I hope this picture of how the sausage is made will be helpful to readers. And maybe somebody will do some searches on all those names….