May 22, 2020

Congress

Additional COVID Funding vs. Employer COVID Liability Shield

The President and GOP congressional leaders are watching the states lifting COVID-19 restrictions as a determinant for whether another legislative stimulus bill is needed.  At this point, the answer is yes.

Since the signing of the CARES Act in March, congressional Republicans say the nation should wait to see if the billions of dollars are helping to stimulate the economy.  However, Senate Majority Leader McConnell reportedly told House Republicans any negotiated end-product would not look like the $3 trillion HEROES Act that passed the House last week.

Treasury Secretary Steven Mnuchin signaled the same.  He said Congress will very likely need to pass more stimulus legislation for the U.S. economy, as the nation struggles to recover. “We’re going to step back for a few weeks and think very carefully if we need to spend more money and how we’re going to do that,” he said during a recent online forum. He said he had spoken to House Speaker Pelosi last week about implementation of the $2.2 trillion stimulus Congress passed in late March.

Next funding bill

The Senate is adjourned until June 8.  The House is still in session.  The Senate chose not to act on the House proposal.  However, the pressure to act is growing.  The next bill will be a sprawling bill that will likely include COVID-related liability protection for employers in exchange for the legislative mandate for an OSHA temporary standard on workplace protections for COVID exposures. In this case, everyone gets the protection they need.  Also, this would set up a framework for liability protection:  employers that follow OSHA rules will get protection. Funding for Michigan’s recent flooding will likely also be included, along with funding for the States.

  1. 3677 and HR 6559 would require OSHA to write COVID-related temporary standards. Both bills require OSHA to write a rule protecting workers from all biological hazards once the COVID emergency is over.


Senate Liability Protections Discussed in Committee

The Senate Judiciary Committee on May 12 held a hearing on offering liability protection to employers from tort claims for COVID exposures.  Committee Chair Lindsay Graham (R-SC) expressed support for liability protection limited in time and scope.  All witnesses expressed support for clear OSHA guidelines on re-opening the country.  A bill is being drafted by Sen. John Cornyn (R-TX) but has not been introduced yet. 15 States have already approved some type of liability protection from COVID-related cases.  Committee member Patrick Leahy (D-VT) said if some states have already taken this step, Congress should not intervene.  The general comment from Committee GOPs was that employers around the nation need a uniform liability standard for COVID.  Once a bill is introduced, it would likely become part of the next COVID response bill.


Additional PPE Liability Protections?

Protective apparel manufacturers have been meeting to explore adding non-FDA-approved protective apparel, and related items, to the PREP Act.  As the Senate moves towards legislation offering liability protection to employers from claims against COVID exposures, ISEA sees a possible opening.

Administration

Executive Order on Regulatory Enforcement

President Trump on May 19, signed an Executive Order on “Regulatory Relief to Support Economic Recovery.”  This is the second installment of Executive Order 13892, issued in March, which gives agencies flexibility on enforcement matters.

Sec. 7 of the new Executive Order (unnumbered at this point) tells agency heads to consider making permanent any standards they have temporarily rescinded, suspended, modified, or waived during the public health emergency if such actions would promote economic recovery. 

Note: ISEA and others are aware of a number of fit-test rules that were waived during the COVID response. 


New Rule Gives FEMA Defense Production Act (DPA) Authority

On May 13, 2020, the Federal Emergency Management Agency (FEMA) published an interim final rule establishing the Emergency Management Priorities and Allocation System (EMPAS) pursuant to Title I of the Defense Production Act (DPA). This rule became final upon publication.  How and when FEMA will use this new power remains to be seen.


Domestic Sourcing Requirements for the Strategic National Stockpile (SNS)

White House officials are discussing changes to the manner in which supplies to the SNS are manufactured and procured. (link) Ideas and programs related to a new manner in which the SNS will be stocked and replenished include:

  • increasing supplies of critically-needed items
  • integrating predictive analytics to determine needs
  • leveraging technology to provide real-time visibility of supply chains, and reducing dependency on foreign supplies

The White House has stated its interest in increasing domestic production and reduce foreign dependence on items critical to the Nation’s health and national security.  The White House has expressed its intention to repurpose the International Development Finance Corporation (DFC) to provide financing to key domestic industries producing vital goods and services for SNS contents.

NOTE:  ISEA has reached out to SNS officials requesting a briefing for ISEA members on the new SNS initiatives.


OSHA

 OSHA is requiring employers to document workplace-related COVID cases (link).  The agency has come under criticism about the lack of data about workplace-related COVID cases.  This action changes that.


SCBA Cylinders – New Special Permit is a Step Backwards

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has re-issued Special Permit 16320, which allows for SCBA cylinder requalification using a technology called Modal Acoustic Emissions (MAE).  However, MAE requalification is used to keep a cylinder in service after its manufacturer’s stated service life of 15 years.  The problem, as ISEA has told PHMSA on a number of occasions, is the MAE process does not assess the integrity of a cylinder’s aluminum lining, which can crack and leak breathing air after a 15-year service life. Neither SCBA manufacturers nor the cylinder manufacturers allow for a cylinder to be used more than 15 years on an SCBA. 

PHMSA, seeking to expand and promote technology for cylinders.  This, as ISEA understands, is the principal reason PHSMA is allowing MAE requalification of cylinders.

NOTE – ISEA staff members and PHMSA officials will speak on Tuesday, May 26 about this.