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ASA Submits Comments on OSHA’s COVID-19 ETS

On Friday, August 19, 2021, ASA, along with the Construction Industry Safety Coalition (CISC), submitted comments to OSHA’s Emergency Temporary Standard (ETS).  These comments supported the Agency’s determination not to include the construction industry within the scope of the rule.  The construction industry has been consistently characterized as low risk for exposure to COVID-19 by OSHA and other regulatory agencies.  The construction industry has been at the forefront of efforts to implement proactive mitigation measures specific to COVID-19.  Per our comments, “any attempts by OSHA to expand the ETS to cover construction is not supported by the evidence and would be impermissible under the Occupational Safety and Health Act of 1970.”

Our comments were separated into several parts with Part 1 explaining the proactive measures taken by the CISC and the construction industry to address COVID-19 in construction.  Part 2 addresses the process that OSHA has undertaken to develop the ETS and how applying the ETS to the construction industry without engaging the Advisory Committee on Construction Safety and Health (“ACCSH”) and specifically raising construction-specific issues in the ETS would be inappropriate and unlawful.  Part 3 describes how and why the construction industry is low risk and thus applying the ETS to the construction industry would be impermissible.  Part 4 describes how it would be inappropriate to apply the requirements of the ETS, the vast majority of which would be inapplicable to the construction work environment, in the construction industry.  Finally, Part 5 discusses how OSHA’ s anti-retaliation paragraph permitting OSHA to pursue Citations and Notifications of Penalty for alleged retaliation is unlawful and impermissible under the OSH Act and OSHA must delete this provision from any final rule.