The answer does not seem clear at this point. It seems that OSHA has completed some of the requirements of the EO, but the Emergency Temporary Standard (ETS) is still in review, and it's not clear when, or if, it will be fully released.
According to the OSHA Defense blog, the January 12th Executive order calls for OSHA to take 4 actions:
- By February 4th, OSHA must consult with the heads of other
appropriate executive departments and agencies and update OSHA’s
COVID-19 guidance to employers on workplace safety during the
COVID-19 pandemic based on the best available scientific knowledge
about virus;
- Review OSHA’s existing enforcement efforts and
strategies related to COVID-19 to identify any short-, medium-, and
long-term changes that should be made to better protect workers;
- Regardless of the outcome of that enforcement review, the Order
mandates that OSHA launch a COVID-19 enforcement National Emphasis
Program to focus OSHA’s enforcement resources on COVID-19 related
violations and anti-retaliation protection;
- “Consider whether an emergency temporary standard on COVID-19, including
with respect to masks in the workplace, is necessary….”
It seems they did complete the National Emphasis Program (#3) on March 12th, when OSHA released Direction describing "policies and procedures for implementing a National Emphasis Program (NEP) to ensure that employees in high-hazard industries or work tasks are protected from the hazard of contracting SARS-CoV-2".
As for the emergency temporary standard (ETS), it seems that they are still bound by requirements for review
Nevertheless, the rule still needs to go to the White House’s Office of Management and Budget (OMB) for approval before it is issued and can go into effect. That likely means that the Office of Information and Regulatory Affairs (OIRA) within OMB will provide for stakeholder input in some form pursuant to Executive Order 12866.
They suggest that the 3/15 deadline was interpreted as the deadline to make the determination on the ETS and submit it for review. The actual regulation would be released after review:
We also have started to hear through the rumor-mill that OSHA understand the Executive Order to require only that OSHA make the determination that a COVID-19 ETS is necessary, and if possible, also to finalize drafting the rule and deliver it to OMB for review by the March 15th date referenced in the EO. At that point, we would not anticipate that OMB would immediately rubber stamp an approval of the ETS. Technically, OMB has 90 days to review and approve the rule, or to return it to OSHA for more work. but that timeline is non-binding and in practice the process can take less than a week for some rules, or many months for others. Since it is an emergency rule, and we presume OSHA has coordinated with OMB to some extent throughout the drafting process, we do not expect OMB will take the more than two or three weeks for its review. But we do anticipate the rule will be at OMB for enough time for the agency to give some real consideration to stakeholder input, even if that is without a preview of the actual regulatory text.
Based on the fact that the ETS has not been delivered to OMB yet, and OMB will give it consideration, we anticipate April 1st is a more realistic target date for when to expect to see OSHA issue a final COVID-19 ETS issued.
An article published on March 18th, 2021 suggests that they did start the review process:
U.S. Department of Labor (DOL) officials reportedly told business groups that the agency, in fact, has decided to issue an ETS, but they did not account for the delay. Instead, DOL representatives have indicated that OSHA has provided the White House Office of Information and Regulatory Affairs a draft ETS for review. Such a review normally could be completed, and the standard published, within two weeks, and the standard could become effective immediately.
A March 23rd article suggests two explainations for the delay on issuing the ETS:
There is considerable legal risk that a COVID-19 ETS will not hold up in court. OSHA has not successfully issued an ETS since 1978.
The president and his closest advisers are taking a cross-country "Help is Here" tour, promoting the American Rescue Plan and a nationwide vaccination rollout. In addition, the president announced on day one of his administration that he intends to include private sector businesses in his National Strategy for the COVID-19 Response and Pandemic Preparedness;[8] the president may not want to distract those employers and the working public with a different message that could be generated by a new COVID-19 ETS.
By March 15, the U.S. Senate had not yet confirmed a secretary of labor or an assistant secretary of OSHA, and issuing an ETS without confirmed leaders in place would have put the department and OSHA at further political risk.
