OSHA COVID Emergency Temporary Standard stayed by Fifth Circuit Court of Appeals

by admin

The Texas Cotton Ginners’ Association (TCGA) has summarized several key issues related to a recent announcement by the Occupational Safety and Health Administration (OSHA) which issued its COVID Emergency Temporary Standard (ETS) for general industry on Friday, November 5.


The new temporary rule, which was supposed to take effect immediately and compliance on some provisions to be achieved by December 5, was put on hold November 6 when the Fifth Circuit Court of Appeals granted an emergency stay of the rule. It is expected that the case will be put on a fast track since there may be other cases challenging the rule.
TCGA notes that even though the rule is “on pause” for now, it is important for cotton ginners and others in agriculture to understand what OSHA has proposed and begin determining whether a business or operation may be subject to the currently proposed rule.


Applicability to Agriculture
As TCGA continues to review the ETS, they note that it is important to understand the rule and its’ applicability to agriculture.


First, TCGA states that a cotton gin IS considered to be an agriculture industry, whereas, bale warehouses, elevators, stores, etcetera are not viewed as agriculture industry in OSHA’s eyes.


For purposes of the ETS, TCGA’s interpretation is a cotton ginning operation with no other operations should first determine if it supplies housing for gin employees. If the gin does not, then TCGA believes that the operation would not be subject to the ETS.If the gin does maintain temporary housing for its employees, applicability would then be determined by the maximum number of employees on payroll during the proposed ETS time-period. Operations having less than 100 employees, would probably not be subject to the ETS.


TCGA notes that it has consulted with various attorneys who have agreed with this interpretation of agriculture applicability to the ETS.


However, alternate interpretations of applicability exist and there are some who have suggested that any agricultural operation with migrant housing would be subject to the ETS, regardless of whether they have 100 employees.
In more detail, the new standard states that the 1928 (Ag) industries must follow the new 1910.501 ETS if at least one of the following statements is true (see underlined below):


§ 1928.21 Applicable standards in 29 CFR part 1910.(a) * * *(8) COVID-19–§1910.501, but only with respect to –(i) Agricultural establishments where eleven (11) or more employees are engaged on any given day in hand-labor operations in the field; and(ii) Agricultural establishments that maintain a temporary labor camp, regardless of how many employees are engaged on any given day in hand- labor operations in the field.


If one of the above statements is true for your business, then you are subject to §1910.501, in which Section 1910.501(b)(1) states:
§ 1910.501 (b)(1)This section covers all employers with a total of 100 or more employees at any time this section is in effect.
The ETS follows the pattern of earlier executive orders and ETS’s that covered federal contractors and healthcare workers. This new ETS rule is very strict and is explicitly intended to preempt state and local authorities from adopting and enforcing workplace requirements related to this issue.


While intended to be a temporary rule, OSHA is in the process of establishing a final, permanent standard based on the new ETS. To that end, OSHA is currently seeking comment on all aspects of the ETS and how it would be adopted as a final standard.


Stakeholders may submit comments and attachments, identified by Docket No. OSHA-2021- 0007, electronically at http://www.regulations.gov/ Comments must be submitted by December 6, 2021.
TCGA’s full explanation of the OSHA standard can be found at: https://www.tcga.org/2021/11/06/osha- issues-emergency-temporary-standard-for-covid/

related articles