A swarm of the most powerful lobbyists in Washington is circling as the White House reviews long-anticipated rules to protect workers from COVID-19 — with meatpacking, hospital and retail industries working to delay the regulations while unions push for more urgency.
The businesses have been winning so far on the timing. The rules are meant to respond to the clusters of infections in crowded workplaces that drive up infections and deaths but arrive more than a year after outbreaks began. President Joe Biden signed an executive order the day after his inauguration asking the Occupational Safety and Health Administration to write the worker protection rules by mid-March, nearly two months ago.
The Office of Information and Regulatory Affairs within the White House’s Office of Management and Budget is reviewing the rules and will take more than two dozen meetings with interest groups over the course of three weeks.
“This does appear to be the first regulation under Biden that has received this much lobbying interest at OIRA,” said Amit Narang, a regulatory policy advocate at Public Citizen.
Business lobbying groups meeting with OIRA include the U.S. Chamber of Commerce, National Association of Manufacturers, National Retail Federation, Retail Industry Leaders Association, National Association of Home Builders and the North American Meat Institute. OIRA also has meetings with several unions, including the AFL-CIO, the North America’s Building Trades Unions, United Food and Commercial Workers International Union and National Nurses United.
There is no comprehensive federal count of how many people got sick because they were exposed to the coronavirus at work; the Centers for Disease Control and Prevention does not collect much occupational data. But peer-reviewed research and federal studies have shown people required to work in person faced higher risk of infection. That helped drive higher mortality among Black and Latino Americans.
Thousands of outbreaks among health care workers and meatpacking workers added to the U.S. death toll.
“Workers are in danger even with a vaccine,” said former OSHA staffer Debbie Berkowitz, director of the National Employment Law Project, who met with the agency in April. She emphasized the high turnover rates in meatpacking could make it difficult to ensure an entire plant is vaccinated.
Berkowitz said she hoped OMB would move quickly.
“Truthfully, I think there has been a lot of review already and industry has already come into various agencies to make their opinions known,” she added.
Business groups argue that an emergency temporary standard would be duplicative because employers have done the right things on their own. They argue the rules could become out of step with the latest CDC guidance.
“Manufacturers have gone above and beyond. Nobody is relaxing health and safety procedures,” said Drew Schneider, director of labor and employment policy at the National Association of Manufacturers.
The Department of Labor blew past a nonbinding March deadline recommended in the president’s executive order, submitting rules for review late last month.
The OMB reportedly said it would take two weeks to review the guidance, a concession to business groups concerned about the fact that, unlike most regulations, the emergency temporary standard would not provide the same opportunity for stakeholders to give input. An emergency temporary standard is not subject to the typical public comment period required for more permanent regulations, something employers’ attorneys criticize.
OIRA is conducting meetings into a third week, including one with the U.S. Chamber of Commerce, a powerful group representing businesses, on Monday. That could signal yet another delay, Narang said.
Push from Congress
The Labor Department may have advanced the rules under pressure from Congress.
The move came days before Secretary Marty Walsh was set to testify about the delay on Capitol Hill. The House Education and Labor Workforce Protections Subcommittee decided to postpone its meeting in light of that decision. The committee is likely to schedule another hearing if the regulation remains stalled at OMB.
Worker advocates say they think the new administration will get the regulation out the door.
“We are optimistic, given the new leadership in the administration,” said Jessica Martinez, co-executive director of the nonprofit National Council for Occupational Safety and Health.
But Martinez acknowledged that worker safety rules have been indefinitely delayed before, citing a rule on exposure to silica, a carcinogen, that was bottled up at OMB for years.
Some Democrats suspect the pushback from business lobbies is behind the delay.
“We know the meatpacking industry has been pushing against an enforceable emergency temporary standard for COVID-19. … Can you assure me that the meat industry’s bogus arguments, shameless lobbying, are not behind the administration’s delay in finalizing the ETS?” House Appropriations Chair Rosa DeLauro, D-Conn., asked Walsh at a hearing April 28.
“The short answer to your question, Madame Chair, is yes, they are not behind this. We’re going through a process,” Walsh responded. “We can’t give you — we can’t predict a deadline.”
“Things can languish forever at OIRA,” DeLauro responded.
But Robert Reich, who served as Labor secretary in the Clinton administration, attributes the delay to Walsh being confirmed to lead the Labor Department at the end of March, after the executive order’s March 15 deadline.
“It’s hard to move stuff in any administration. You really need to have the Cabinet official in charge installed there to speed things up,” Reich said. “[Trump administration Labor Secretary Eugene] Scalia dragged his feet to the greatest extent that he could. But this administration is very different.”
Conversations with some of the two dozen stakeholders meeting with OIRA reveal that the trade groups and workers’ advocates couldn’t be further apart on the issue.
According to meeting materials, a coalition of unions that includes the AFL-CIO cited CDC research showing local surges were driven by more infectious variants, more capable of evading vaccines. That could emphasize the need for regulation even as vaccinations continue.
Meanwhile, industry groups like NAM are concerned that some case-tracking requirements might lead to quarantined employees being “unnecessarily removed from the workplace” and lead to costly litigation.
The American Health Association made the case to OIRA that sudden disruptions to the supply chain for personal protective equipment could make abiding by an emergency standard impossible, an argument that helped scuttle attempts to include a standard in a relief bill in March 2020.
Meanwhile, a new coalition of American mask makers will argue that production of protective equipment has ballooned since the run on N95 masks over a year ago, and some of those companies are even at risk of going out of business.
Some trade groups are making their case through coalitions with friendly names.
A coalition of trade groups organized by the Chamber of Commerce is meeting with OIRA under the moniker “Coalition for Workplace Safety.”
The housing industry, including the National Association of Home Builders, met with OIRA as the “Construction Industry Safety Coalition,” a coalition originally formed to protest the silica rule.
Conn Maciel Carey LLP, a law firm representing employers including the petroleum and farming industries, has organized at least two coalition groups, “the Employers COVID-19 Prevention Coalition” and the “Healthcare Employers of the Employers COVID-19 Prevention Coalition,” both of which have meetings with OIRA.
Conn Maciel Carey did not respond to a request for an interview.
“Back in the ’70s and the ’80s, the corporate community learned that having groups with anodyne names helped keep them from the direct firing line of public opinion,” said Meredith McGehee, executive director of Issue One, a group that calls for less corporate influence in politics. “Why do they do it? Because it works.”