The US Department of Labor sent an emergency temporary standard, or ETS, for Covid-19 workplace safety to the White House on April 26, the first step before it is released publicly and can take effect.

While the rules are still pending, buyers and their staffing providers should begin discussing how it will apply to their contingent workforce. As co-employers, both the buyer and the staffing firm need to  evaluate contracts.

ETS Planning

The last time OSHA issued an emergency standard, separate from the normal rulemaking process, was in 1983 in response to exposure to asbestos. The new mandates, which will remain in effect for six months, are the result of an executive order issued by President Biden in January. That order called for the new standard by March 15, but the deadline passed with no standard issued.

“Since the ETS is likely to take immediate effect once issued, planning must occur prior to its issuance,” Gary Pearce, chief risk architect at Aclaimant, a workflow solution for safety and risk management, told SIA. “We don’t know what will be included in the ETS, but the guidance issued by OSHA on Jan. 29 provides a strong indication of the likely components.”

This includes:

  • Hazard assessments and mitigation
  • Cleaning protocol
  • Training
  • Employee communication
  • Employer-provided personal protective equipment when necessary
  • Effective processes to receive and address communication from workers
  • Processes for the removal and return to work of infected or exposed persons

In addition, it reportedly may comprise separate rules for healthcare employers and other industries, according to The National Law Review.

Contingent workforce buyers are obligated to provide a safe and compliant work environment for staffing firms’ employees. OSHA will be more interested in ensuring that necessary precautions are in place than in whose responsibility they are, but buyers shouldn’t ask their staffing providers to take contractually responsibility for things beyond their control, according to Pearce.

“Now would be a good time for staffing firms to review current customer contracts with respect to what they say about safety and allocation of safety-related responsibilities,” he advises.

The rules will likely be influenced by the California Division of Occupational Safety and Health’s stringent Covid-19 ETS as President Biden’s nomination for head of OSHA is Doug Parker, who also oversaw implementation of Cal/OSHA’s Covid-19 ETS, according to a client alert from law firm Stites & Harbison PLLC. In addition, the standard will likely require states with their own state OSHA plans to adopt the ETS or a similar rule that is at least as effective as the ETS.

“This means that even if you are located in a state with its own OSHA plan, you will likely be responsible for complying with the ETS’s requirements.” The law firm wrote.