President Biden planned to issue a temporary face mask standard in workplaces by his 55th day in office, but his administration missed that deadline as discussions continue on the potential new federal standard for private businesses.
In a Jan. 21 executive order, Biden directed his administration to “consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021.”
But that deadline has come and gone without any such mandate.
Biden “wants to ensure that workers are of course safe. He’s asked the American people to do their part to help quickly beat the virus,” White House press secretary Jen Psaki said Monday. “And he has directed OSHA to determine if any emergency — if an emergency temporary standard was necessary to protect workers from COVID.”
“So his objective is actually to protect workers and members of the workforce,” she continued. “The OSHA has been working diligently, but we, of course, believe they should have the time to get it right and time to ensure it’s right. And so we’re waiting for them to make a conclusion.”
CBS News reported Monday, citing three people familiar with the talks, that the national standard — which would affect millions of Americans — is still expected to eventually be approved.
The Occupational Safety and Health Administration (OSHA), which is an arm of the Labor Department, is the agency Biden tasked with leading the review. It has not issued an emergency temporary standard (ETS), like what Biden asked it to review, since 1983, according to the Congressional Research Service (CRS).
OSHA also determined that an ETS was necessary to address “popcorn lung” in 2006 but eventually didn’t issue the rule. The CRS said that was because the agency was no longer sure it could meet the “grave danger” standard required for it to issue an ETS after the industries that used the chemical that caused popcorn lung took mitigating actions.
The “grave danger” standard and other rules that govern the creation of an ETS could also lead to judicial challenges to a new federal face mask rule.
Notably, the most recent ETS from 1983 — which aimed to reduce asbestos exposure in the workplace — was struck down in federal court. According to the CRS, the ruling was “on the grounds that OSHA did not provide sufficient support for its claim that 80 workers would ultimately die because of exposures to asbestos during the six-month life of the ETS.”
The fact that many states and businesses have face mask mandates in the workplace, the proliferation of vaccines, and the falling coronavirus case numbers in the U.S. may complicate any effort to justify an ETS on face masks, potentially leading to legal challenges.
“There are no new federal rules yet,” Psaki said Monday. “We will let OSHA put out their guidelines and then, of course, we will work to ensure that people understand why and that they support workers being safe, which I think even many owners of businesses would support.”
Fox News’ Edmund DeMarche contributed to this report.