Occupational Safety and Health Administration (OSHA): COVID-19 Emergency Temporary Standards (ETS) on Health Care Employment and Vaccinations and Testing for Large Employers

Changes from May 28, 2020 to June 10, 2020

This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with ~~red strikethrough~~ and textual matter added in the later version is indicated with blue.

Occupational Safety and Health Administration ~~May 28~~June 10, 2020 , 2020
(OSHA): Emergency Temporary Standards (ETS) Scott D. Szymendera
and COVID-19
Analyst in Disability Policy Analyst in Disability Policy

The Occupational Safety and Health Administration (OSHA) does not currently have a specific The Occupational Safety and Health Administration (OSHA) does not currently have a specific
standard that protects healthcare or other workers from airborne or aerosol transmission of standard that protects healthcare or other workers from airborne or aerosol transmission of

disease or diseases transmitted by airborne droplets. Some in Congress, and some groups disease or diseases transmitted by airborne droplets. Some in Congress, and some groups
representing healthcare, meat and poultry processing, and other workers, are calling on OSHA to promulgate an emergency representing healthcare, meat and poultry processing, and other workers, are calling on OSHA to promulgate an emergency
temporary standard (ETS) to protect workers from exposure to SARS-Cov-2, the virus that causes Coronavirus Disease 2019 temporary standard (ETS) to protect workers from exposure to SARS-Cov-2, the virus that causes Coronavirus Disease 2019
(COVID-19). The Occupational Safety and Health Act of 1970 (OSH Act) gives OSHA the ability to promulgate an ETS that (COVID-19). The Occupational Safety and Health Act of 1970 (OSH Act) gives OSHA the ability to promulgate an ETS that
would remain in effect for up to six months without going through the normal review and comment process of rulemaking. would remain in effect for up to six months without going through the normal review and comment process of rulemaking.
OSHA, however, has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983. OSHA, however, has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983.
The California Division of Occupational Safety and Health (Cal/OSHA), which operates California’s state occupational The California Division of Occupational Safety and Health (Cal/OSHA), which operates California’s state occupational
safety and health plan, has had an aerosol transmissible disease (ATD) standard since 2009. This standard includes, among safety and health plan, has had an aerosol transmissible disease (ATD) standard since 2009. This standard includes, among
other provisions, the requirement that employers provide covered employees with respirators, rather than surgical masks, other provisions, the requirement that employers provide covered employees with respirators, rather than surgical masks,
when these workers interact with ATDs, such as known or suspected COVID-19 cases. Also, according to the Cal/OSHA when these workers interact with ATDs, such as known or suspected COVID-19 cases. Also, according to the Cal/OSHA
ATD standard, certain procedures require the use of powered air purifying respirators (PAPR). Both OSHA and Cal/OSHA ATD standard, certain procedures require the use of powered air purifying respirators (PAPR). Both OSHA and Cal/OSHA
have issued enforcement guidance to address situations when the shortage of respirators may impede an employer’s ability to have issued enforcement guidance to address situations when the shortage of respirators may impede an employer’s ability to
comply with existing standards. comply with existing standards.
H.R. 6139, the COVID-19 Health Care Worker Protection Act of 2020, would require OSHA to promulgate an ETS on H.R. 6139, the COVID-19 Health Care Worker Protection Act of 2020, would require OSHA to promulgate an ETS on
COVID-19 that incorporates both the Cal/OSHA ATD standard and the Centers for Disease Control and Prevention’s COVID-19 that incorporates both the Cal/OSHA ATD standard and the Centers for Disease Control and Prevention’s
(CDC’s) 2007 guidelines on occupational exposure to infectious agents in healthcare settings(CDC’s) 2007 guidelines on occupational exposure to infectious agents in healthcare settings, with similar provisions in S. 3475. The CDC’s 2007 guidelines . The CDC’s 2007 guidelines
generally require stricter controls than its interim guidance on COVID-19 exposure. The provisions of H.R. 6139 were generally require stricter controls than its interim guidance on COVID-19 exposure. The provisions of H.R. 6139 were
incorporated into the version of H.R. 6201, the Families First Coronavirus Response Act, as introduced in the House. incorporated into the version of H.R. 6201, the Families First Coronavirus Response Act, as introduced in the House.
However, the OSHA ETS provisions were not included in the version of legislation that passed the House and the Senate and However, the OSHA ETS provisions were not included in the version of legislation that passed the House and the Senate and
was signed into law as P.L. 116-127. was signed into law as P.L. 116-127.
H.R. 6379, as introduced in the House, also includes a requirement for an OSHA ETS and permanent standard to address H.R. 6379, as introduced in the House, also includes a requirement for an OSHA ETS and permanent standard to address
COVID-19 exposure, with similar provisions in S. 3584. H.R. 6559 includes the requirements for an ETS and permanent COVID-19 exposure, with similar provisions in S. 3584. H.R. 6559 includes the requirements for an ETS and permanent
standard, clarifies the requirement that employers must report work-related COVID-19 cases, and expands protections for standard, clarifies the requirement that employers must report work-related COVID-19 cases, and expands protections for
whistleblowerswhistleblowers, with similar provisions in S. 3677. The provisions of H.R. 6559 were included in H.R. 6800, . The provisions of H.R. 6559 were included in H.R. 6800, ~~the Health and Economic Recovery Omnibus~~
~~Emergency Solutions Act (HEROES Act)~~The Heroes Act, passed by the House on May 15, 2020. passed by the House on May 15, 2020.
~~A group representing hospitals~~The American Hospital Association (AHA) claims that because SARS-Cov-2 is primarily transmitted by airborne droplets and surface claims that because SARS-Cov-2 is primarily transmitted by airborne droplets and surface
contacts, surgical masks contacts, surgical masks (rather than N95 respirators) are sufficient protection for workers coming into routine contact with COVID-19 casesare sufficient protection for workers coming into routine contact with COVID-19 cases~~, and that the~~
~~shortage of respirators~~. However, the global shortage of respirators and other equipment and the lack of sufficient testing capacity may adversely impact some hospitals’ may adversely impact some hospitals’ ~~patient~~ capacities capacities to treat patients if stricter requirements to provide personal if stricter requirements to provide personal
protective equipment (PPE) to employees were to be enacted.protective equipment (PPE) to employees were to be enacted. The AHA also opposes provisions that would require an ETS to be based on existing state occupational safety and health standards.

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OSHA: ETS and COVID-19

Occupational Safety and Health Administration
Standards
Section 6 of the Occupational Safety and Health Act of 1970 (OSH Act) grants the Occupational Section 6 of the Occupational Safety and Health Act of 1970 (OSH Act) grants the Occupational
Safety and Health Administration (OSHA) of the Department of Labor (DOL) the authority to Safety and Health Administration (OSHA) of the Department of Labor (DOL) the authority to
promulgate, modify, or revoke occupational safety and health standards that apply to private promulgate, modify, or revoke occupational safety and health standards that apply to private
sector employers, the United States Postal Service, and the federal government as an employer.1 sector employers, the United States Postal Service, and the federal government as an employer.1
In addition, Section 5(a)(1) of the OSH Act, commonly referred to as the General Duty Clause, In addition, Section 5(a)(1) of the OSH Act, commonly referred to as the General Duty Clause,
requires that all employers under OSHA’s jurisdiction provide workplaces free of “recognized requires that all employers under OSHA’s jurisdiction provide workplaces free of “recognized
hazards that are causing or are likely to cause death or serious physical harm” to their hazards that are causing or are likely to cause death or serious physical harm” to their
employees.2 OSHA has the authority to enforce employer compliance with its standards and with employees.2 OSHA has the authority to enforce employer compliance with its standards and with
the General Duty Clause through the issuance of abatement orders, citations, and civil monetary the General Duty Clause through the issuance of abatement orders, citations, and civil monetary
penalties. The OSH Act does not cover state or local government agencies or units. Thus, certain penalties. The OSH Act does not cover state or local government agencies or units. Thus, certain
entities that may be affected by Coronavirus Disease 2019 (COVID-19), such as state and local entities that may be affected by Coronavirus Disease 2019 (COVID-19), such as state and local
government hospitals, local fire departments and emergency medical services, state prisons and government hospitals, local fire departments and emergency medical services, state prisons and
county jails, and public schools, are not covered by the OSH Act or subject to OSHA regulation county jails, and public schools, are not covered by the OSH Act or subject to OSHA regulation
or enforcement. or enforcement.
State Plans
Section 18 of the OSH Act authorizes states to establish their own occupational safety and health Section 18 of the OSH Act authorizes states to establish their own occupational safety and health
plans and preempt standards established and enforced by OSHA.3 OSHA must approve state plans and preempt standards established and enforced by OSHA.3 OSHA must approve state
plans if they are “at least as effective” as OSHA’s standards and enforcement.4 If a state adopts a plans if they are “at least as effective” as OSHA’s standards and enforcement.4 If a state adopts a
state plan, it also must cover state and local government entities not covered by OSHA. Currently, state plan, it also must cover state and local government entities not covered by OSHA. Currently,
21 states and Puerto Rico have state plans that cover all employers, and 5 states and the U.S. 21 states and Puerto Rico have state plans that cover all employers, and 5 states and the U.S.
Virgin Islands have state plans that cover only state and local government employers not covered Virgin Islands have state plans that cover only state and local government employers not covered
by the OSH Act.5 In the remaining states, state and local government employers are not covered by the OSH Act.5 In the remaining states, state and local government employers are not covered
by OSHA standards or enforcement. State plans may incorporate OSHA standards by reference, by OSHA standards or enforcement. State plans may incorporate OSHA standards by reference,
or states may adopt their own standards that are at least as effective as OSHA’s standards. or states may adopt their own standards that are at least as effective as OSHA’s standards.
Promulgation of OSHA Standards
OSHA may promulgate occupational safety and health standards on its own initiative or in OSHA may promulgate occupational safety and health standards on its own initiative or in
response to petitions submitted to the agency by various government agencies, the public, or response to petitions submitted to the agency by various government agencies, the public, or
employer and employee groups.6 OSHA is not required, however, to respond to a petition for a employer and employee groups.6 OSHA is not required, however, to respond to a petition for a
standard or to promulgate a standard in response to a petition. OSHA may also consult with one standard or to promulgate a standard in response to a petition. OSHA may also consult with one

1 29 U.S.C. §655. The provisions of the Occupational Safety and Health Act of 1970 (OSH Act) are extended to the 1 29 U.S.C. §655. The provisions of the Occupational Safety and Health Act of 1970 (OSH Act) are extended to the
legislative branch as an employer by the Congressional Accountability Act (P.L. 104-1). legislative branch as an employer by the Congressional Accountability Act (P.L. 104-1).
2 29 U.S.C. §654(a)(1). 2 29 U.S.C. §654(a)(1).
3 29 U.S.C. §667. 3 29 U.S.C. §667.
4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see CRS Report 4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see CRS Report
R43969, R43969, OSHA State Plans: In Brief, with Examples from California and Arizona. .
5 Information on specific state plans is available from the OSHA website at https://www.osha.gov/stateplans. 5 Information on specific state plans is available from the OSHA website at https://www.osha.gov/stateplans.
6 Per Section 6(b)(1) of the OSH Act [29 §655(b)(1)], a petition may be submitted by “an interested person, a 6 Per Section 6(b)(1) of the OSH Act [29 §655(b)(1)], a petition may be submitted by “an interested person, a
representative of any organization of employers or employees, a nationally recognized standards-producing representative of any organization of employers or employees, a nationally recognized standards-producing
organization, the Secretary of Health and Human Services, the National Institute for Occupational Safety and Health, or organization, the Secretary of Health and Human Services, the National Institute for Occupational Safety and Health, or
a state or political subdivision.” a state or political subdivision.”
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of the two statutory standing advisory committees—the National Advisory Committee on of the two statutory standing advisory committees—the National Advisory Committee on
Occupational Safety and Health (NACOSH) or the Advisory Committee on Construction Safety Occupational Safety and Health (NACOSH) or the Advisory Committee on Construction Safety
and Health (ACCSH)—or an ad-hoc advisory committee for assistance in developing a standard.7 and Health (ACCSH)—or an ad-hoc advisory committee for assistance in developing a standard.7
Notice and Comment
OSHA’s rulemaking process for the promulgation of standards is largely governed by the OSHA’s rulemaking process for the promulgation of standards is largely governed by the
provisions of the Administrative Procedure Act (APA) and Section 6(b) of the OSH Act.8 Under provisions of the Administrative Procedure Act (APA) and Section 6(b) of the OSH Act.8 Under
the APA informal rulemaking process, federal agencies, including OSHA, are required to provide the APA informal rulemaking process, federal agencies, including OSHA, are required to provide
notice of proposed rules through the publication of a Notice of Proposed Rulemaking in the notice of proposed rules through the publication of a Notice of Proposed Rulemaking in the
Federal Register and provide the public a period of time to provide comments on the proposed and provide the public a period of time to provide comments on the proposed
rules. rules.
Section 7(b) of the OSH Act mirrors the APA in that it requires notice and comment in the Section 7(b) of the OSH Act mirrors the APA in that it requires notice and comment in the
rulemaking process.9 After publishing a proposed standard, the public must be given a period of rulemaking process.9 After publishing a proposed standard, the public must be given a period of
at least 30 days to provide comments. In addition, any person may submit written objections to at least 30 days to provide comments. In addition, any person may submit written objections to
the proposed standard and may request a public hearing on the standard. the proposed standard and may request a public hearing on the standard.
Statement of Reasons
Section 6(e) of the OSH Act requires OSHA to publish in the Section 6(e) of the OSH Act requires OSHA to publish in the Federal Register a statement of the a statement of the
reasons the agency is taking action whenever it promulgates a standard, conducts other reasons the agency is taking action whenever it promulgates a standard, conducts other
rulemaking, or takes certain additional actions, including issuing an order, compromising on a rulemaking, or takes certain additional actions, including issuing an order, compromising on a
penalty amount, or settling an issued penalty.10 penalty amount, or settling an issued penalty.10
Other Relevant Laws and Executive Order 12866
In addition to the APA and OSH Act, other federal laws that generally apply to OSHA rulemaking In addition to the APA and OSH Act, other federal laws that generally apply to OSHA rulemaking
include the Paperwork Reduction Act,11 Regulatory Flexibility Act,12 Congressional Review include the Paperwork Reduction Act,11 Regulatory Flexibility Act,12 Congressional Review
Act,13 Information Quality Act,14 and Small Business Regulatory Enforcement Fairness Act Act,13 Information Quality Act,14 and Small Business Regulatory Enforcement Fairness Act
(SBREFA).15 Also, Executive Order 12866, issued by President Clinton in 1993, requires (SBREFA).15 Also, Executive Order 12866, issued by President Clinton in 1993, requires
agencies to submit certain regulatory actions to the Office of Management and Budget (OMB) agencies to submit certain regulatory actions to the Office of Management and Budget (OMB)
and Office of Information and Regulatory Affairs (OIRA) for review before promulgation.16 and Office of Information and Regulatory Affairs (OIRA) for review before promulgation.16

7 The National Advisory Committee on Occupational Safety and Health (NACOSH) was established by Section 7(a) of 7 The National Advisory Committee on Occupational Safety and Health (NACOSH) was established by Section 7(a) of
the OSH Act [29 U.S.C. §656(a)]. The Advisory Committee on Construction Safety and Health (ACCSH) was the OSH Act [29 U.S.C. §656(a)]. The Advisory Committee on Construction Safety and Health (ACCSH) was
established by Section 107 of the Contract Work Hours and Safety Act (P.L. 87-581). Section 7(b) of the OSH Act established by Section 107 of the Contract Work Hours and Safety Act (P.L. 87-581). Section 7(b) of the OSH Act
provides OSHA the authority to establish additional advisory committees. provides OSHA the authority to establish additional advisory committees.
8 The Administrative Procedure Act (APA) is codified at 5 U.S.C. §§500-596. For detailed information on federal 8 The Administrative Procedure Act (APA) is codified at 5 U.S.C. §§500-596. For detailed information on federal
agency rulemaking and the APA, see CRS Report RL32240, agency rulemaking and the APA, see CRS Report RL32240, The Federal Rulemaking Process: An Overview. .
9 29 U.S.C. §655(b). 9 29 U.S.C. §655(b).
10 29 U.S.C §655(e). 10 29 U.S.C §655(e).
11 44 U.S.C. §§3501-3520. 11 44 U.S.C. §§3501-3520.
12 5 U.S.C. §§601-612. 12 5 U.S.C. §§601-612.
13 5 U.S.C. §§801-808. 13 5 U.S.C. §§801-808.
14 44 U.S.C. §3516 note. 14 44 U.S.C. §3516 note.
15 5 U.S.C. §601 note. For information on these additional laws that apply to OSHA rulemaking, see U.S. Government 15 5 U.S.C. §601 note. For information on these additional laws that apply to OSHA rulemaking, see U.S. Government
Accountability Office (GAO), Accountability Office (GAO), Workplace Safety and Health: Multiple Challenges Lengthen OSHA’s Standard Setting, ,
GAO-12-330, April 2012, Appendix II, at https://www.gao.gov/products/GAO-12-330 (hereinafter cited as GAO-12-GAO-12-330, April 2012, Appendix II, at https://www.gao.gov/products/GAO-12-330 (hereinafter cited as GAO-12-
330, 330, Workplace Safety and Health). ).
16 Executive Order 12866, “Regulatory Planning and Review,” 58 16 Executive Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, October 4, 1993. 51735, October 4, 1993.
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OSHA Rulemaking Timeline
OSHA rulemaking for new standards has historically been a relatively time-consuming process. OSHA rulemaking for new standards has historically been a relatively time-consuming process.
In 2012, at the request of Congress, the Government Accountability Office (GAO) reviewed 59 In 2012, at the request of Congress, the Government Accountability Office (GAO) reviewed 59
significant OSHA standards promulgated between 1981 (after the enactments of the Paperwork significant OSHA standards promulgated between 1981 (after the enactments of the Paperwork
Reduction Act and Regulatory Flexibility Act) and 2010.17 For these standards, OSHA’s average Reduction Act and Regulatory Flexibility Act) and 2010.17 For these standards, OSHA’s average
time between beginning formal consideration of the standard—either through publishing a time between beginning formal consideration of the standard—either through publishing a
Request for Information or Advanced Notice of Proposed Rulemaking in the Request for Information or Advanced Notice of Proposed Rulemaking in the Federal Register or or
placing the rulemaking on its semiannual regulatory agenda—and promulgation of the standard placing the rulemaking on its semiannual regulatory agenda—and promulgation of the standard
was 93 months (7 years, 9 months). Once the Notice of Proposed Rulemaking was published for was 93 months (7 years, 9 months). Once the Notice of Proposed Rulemaking was published for
these 59 standards, the average time until promulgation of the standard was 39 months (3 years, 3 these 59 standards, the average time until promulgation of the standard was 39 months (3 years, 3
months). months).
In 2012, OSHA’s Directorate of Standards and Guidance published a flowchart of the OSHA In 2012, OSHA’s Directorate of Standards and Guidance published a flowchart of the OSHA
rulemaking process on the agency’s website.18 This flowchart includes estimated duration ranges rulemaking process on the agency’s website.18 This flowchart includes estimated duration ranges
for a variety of rulemaking actions, beginning with pre-rule activities—such as developing the for a variety of rulemaking actions, beginning with pre-rule activities—such as developing the
idea for the standard and meeting with stakeholders—and ending with promulgation of the idea for the standard and meeting with stakeholders—and ending with promulgation of the
standard. The flowchart also includes an estimated duration range for post-promulgation standard. The flowchart also includes an estimated duration range for post-promulgation
activities, such as judicial review. The estimated time from the start of preliminary rulemaking to activities, such as judicial review. The estimated time from the start of preliminary rulemaking to
the promulgation of a standard ranges from 52 months (4 years, 4 months) to 138 months (11 the promulgation of a standard ranges from 52 months (4 years, 4 months) to 138 months (11
years, 6 months). After a Notice of Proposed Rulemaking is published in the years, 6 months). After a Notice of Proposed Rulemaking is published in the Federal Register, the the
estimated length of time until the standard is promulgated ranges from 26 months (2 years, 2 estimated length of time until the standard is promulgated ranges from 26 months (2 years, 2
months) to 63 months (5 years, 3 months) to 63 months (5 years, 3 ~~month~~s)months). Table 1 provides OSHA’s estimated timelines for six provides OSHA’s estimated timelines for six
major pre-rulemaking and rulemaking activities leading to the promulgation of a standard.major pre-rulemaking and rulemaking activities leading to the promulgation of a standard.
Table 1. OSHA Rulemaking Process: Estimated Durations of Activities
Stage
Activities
Estimated Duration
1 1
Preliminary rulemaking activities Preliminary rulemaking activities
12-36 months 12-36 months
2 2
Developing the proposed rule Developing the proposed rule
12-36 months 12-36 months
3 3
Publishing the Notice of Proposed Rulemaking (NPRM) Publishing the Notice of Proposed Rulemaking (NPRM)
2-3 months 2-3 months
4 4
Developing and analyzing the rulemaking record, including public comments Developing and analyzing the rulemaking record, including public comments
and hearings and hearings
6-24 months 6-24 months
5 5
Developing the final rule, including Office of Information and Regulatory Developing the final rule, including Office of Information and Regulatory
Affairs (OIRA) submission Affairs (OIRA) submission
18-36 months 18-36 months
6 6
Publishing the final rule (promulgating the new standard) Publishing the final rule (promulgating the new standard)
2-3 months 2-3 months
Total estimated duration Total estimated duration
52-138 months 52-138 months
Estimated duration from NPRM to final rule Estimated duration from NPRM to final rule
26-63 months 26-63 months
Source: Congressional Research Service (CRS) with data from Occupational Safety and Health Administration Congressional Research Service (CRS) with data from Occupational Safety and Health Administration
(OSHA), Directorate of Standards and Guidance, (OSHA), Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at , October 15, 2012, at
https://www.osha.gov/OSHA_FlowChart.pdf. https://www.osha.gov/OSHA_FlowChart.pdf.

17 GAO-12-330, 17 GAO-12-330, Workplace Safety and Health. .
18 OSHA, Directorate of Standards and Guidance, 18 OSHA, Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at , October 15, 2012, at
https://www.osha.gov/OSHA_FlowChart.pdf. https://www.osha.gov/OSHA_FlowChart.pdf.
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Judicial Review
Both the APA and the OSH Act provide for judicial review of OSHA standards. Section 7(f) of Both the APA and the OSH Act provide for judicial review of OSHA standards. Section 7(f) of
the OSH Act provides that any person who is “adversely affected” by a standard may file, within the OSH Act provides that any person who is “adversely affected” by a standard may file, within
60 days of its promulgation, a petition challenging the standard with the U.S. Court of Appeals 60 days of its promulgation, a petition challenging the standard with the U.S. Court of Appeals
for the circuit in which the person lives or maintains his or her principal place of business.19 A for the circuit in which the person lives or maintains his or her principal place of business.19 A
petition for judicial review does not automatically stay the implementation or enforcement of the petition for judicial review does not automatically stay the implementation or enforcement of the
standard. However, the court may order such a stay. OSHA estimates that post-promulgation standard. However, the court may order such a stay. OSHA estimates that post-promulgation
activities, including judicial review, can take between 4 and 12 months after the standard is activities, including judicial review, can take between 4 and 12 months after the standard is
promulgated.20 promulgated.20
Emergency Temporary Standards
Section 6(c) of the OSH Act provides the authority for OSHA to issue an Emergency Temporary Section 6(c) of the OSH Act provides the authority for OSHA to issue an Emergency Temporary
Standard (ETS) without having to go through the normal rulemaking process. OSHA may Standard (ETS) without having to go through the normal rulemaking process. OSHA may
promulgate an ETS without supplying any notice or opportunity for public comment or public promulgate an ETS without supplying any notice or opportunity for public comment or public
hearings. An ETS is immediately effective upon publication in the hearings. An ETS is immediately effective upon publication in the Federal Register. Upon . Upon
promulgation of an ETS, OSHA is required to begin the full rulemaking process for a permanent promulgation of an ETS, OSHA is required to begin the full rulemaking process for a permanent
standard with the ETS serving as the proposed standard for this rulemaking. An ETS is valid until standard with the ETS serving as the proposed standard for this rulemaking. An ETS is valid until
superseded by a permanent standard, which OSHA must promulgate within six months of superseded by a permanent standard, which OSHA must promulgate within six months of
publishing the ETS in the publishing the ETS in the Federal Register.21 An ETS must include a statement of reasons for the .21 An ETS must include a statement of reasons for the
action in the same manner as required for a permanent standard. State plans are required to adopt action in the same manner as required for a permanent standard. State plans are required to adopt
or adhere to an ETS, although the OSH Act is not clear on how quickly a state plan must come or adhere to an ETS, although the OSH Act is not clear on how quickly a state plan must come
into compliance with an ETS. into compliance with an ETS.
ETS Requirements
Section 6(c)(1) of the OSH Act requires that both of the following determinations be made in Section 6(c)(1) of the OSH Act requires that both of the following determinations be made in
order for OSHA to promulgate an ETS: order for OSHA to promulgate an ETS:
 that employees are exposed to grave danger from exposure to substances or  that employees are exposed to grave danger from exposure to substances or
agents determined to be toxic or physically harmful or from new hazards, and agents determined to be toxic or physically harmful or from new hazards, and
 that such emergency standard is necessary to protect employees from such  that such emergency standard is necessary to protect employees from such
danger. danger.
Grave Danger Determination
The term The term grave danger, used in the first mandatory determination for an ETS, is not defined in , used in the first mandatory determination for an ETS, is not defined in
statute or regulation. The legislative history demonstrates the intent of Congress that the ETS statute or regulation. The legislative history demonstrates the intent of Congress that the ETS
process “not be utilized to circumvent the regular standard-setting process,” but the history is process “not be utilized to circumvent the regular standard-setting process,” but the history is
unclear as to how Congress intended the term grave danger to be defined.22 unclear as to how Congress intended the term grave danger to be defined.22

19 29 U.S.C. §655(f). 19 29 U.S.C. §655(f).
20 OSHA, Directorate of Standards and Guidance, 20 OSHA, Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at , October 15, 2012, at
https://www.osha.gov/OSHA_FlowChart.pdf. https://www.osha.gov/OSHA_FlowChart.pdf.
21 29 U.S.C §655(c)(2). 21 29 U.S.C §655(c)(2).
22 U.S. Congress, Senate Labor and Public Welfare, Subcommittee on Labor, 22 U.S. Congress, Senate Labor and Public Welfare, Subcommittee on Labor, Legislative History of the Occupational
Safety and Health Act of 1970 (S. 2193S. 2193, P.L. 91-596), committee print, prepared by Subcommittee on Labor, 91st , committee print, prepared by Subcommittee on Labor, 91st
Cong., 1 sess., June 1971, 52-531 (Washington: GPO, 1971), p. 1218. Cong., 1 sess., June 1971, 52-531 (Washington: GPO, 1971), p. 1218.
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In addition, although the federal courts have ruled on challenges to previous ETS promulgations, In addition, although the federal courts have ruled on challenges to previous ETS promulgations,
the courts have provided no clear guidance as to what constitutes a grave danger. In 1984, the the courts have provided no clear guidance as to what constitutes a grave danger. In 1984, the
U.S. Court of Appeals for the Fifth Circuit in U.S. Court of Appeals for the Fifth Circuit in Asbestos Info. Ass’n v. OSHA issued a stay and issued a stay and
invalidated OSHA’s November 1983 ETS lowering the permissible exposure limit for asbestos in invalidated OSHA’s November 1983 ETS lowering the permissible exposure limit for asbestos in
the workplace.23 In its decision, the court stated that “gravity of danger is a policy decision the workplace.23 In its decision, the court stated that “gravity of danger is a policy decision
committed to OSHA, not to the courts.”24 The court, however, ultimately rejected the ETS, in part committed to OSHA, not to the courts.”24 The court, however, ultimately rejected the ETS, in part
on the grounds that OSHA did not provide sufficient support for its claim that 80 workers would 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. ultimately die because of exposures to asbestos during the six-month life of the ETS.
Necessity Determination
In addition to addressing a grave danger to employees, an ETS must also be In addition to addressing a grave danger to employees, an ETS must also be necessary to protect to protect
employees from that danger. In employees from that danger. In Asbestos Info. Ass’n, the court invalidated the asbestos ETS for , the court invalidated the asbestos ETS for
the additional reason that OSHA had not demonstrated the necessity of the ETS. The court cited, the additional reason that OSHA had not demonstrated the necessity of the ETS. The court cited,
among other factors, the duplication between the respirator requirements of the ETS and OSHA’s among other factors, the duplication between the respirator requirements of the ETS and OSHA’s
existing standards requiring respirator use. The court dismissed OSHA’s argument that the ETS existing standards requiring respirator use. The court dismissed OSHA’s argument that the ETS
was necessary because the agency felt that the existing respiratory standards were “unenforceable was necessary because the agency felt that the existing respiratory standards were “unenforceable
absent actual monitoring to show that ambient asbestos particles are so far above the permissible absent actual monitoring to show that ambient asbestos particles are so far above the permissible
limit that respirators are necessary to bring employees’ exposure within the PEL of 2.0 f/cc.”25 limit that respirators are necessary to bring employees’ exposure within the PEL of 2.0 f/cc.”25
The court determined that “fear of a successful judicial challenge to enforcement of OSHA’s The court determined that “fear of a successful judicial challenge to enforcement of OSHA’s
permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in
OSHA’s enforcement arsenal.”26 OSHA’s enforcement arsenal.”26
Although OSHA has not promulgated an ETS since the 1983 asbestos standard, it has since Although OSHA has not promulgated an ETS since the 1983 asbestos standard, it has since
determined the necessity of an ETS. In 2006, the agency considered a petition from the United determined the necessity of an ETS. In 2006, the agency considered a petition from the United
Food and Commercial Workers (UFCW) and International Brotherhood of Teamsters (IBT) for an Food and Commercial Workers (UFCW) and International Brotherhood of Teamsters (IBT) for an
ETS on diacetyl. The UFCW and IBT petitioned OSHA for the ETS after the National Institute ETS on diacetyl. The UFCW and IBT petitioned OSHA for the ETS after the National Institute
for Occupational Safety and Health (NIOSH) and other researchers found that airborne exposure for Occupational Safety and Health (NIOSH) and other researchers found that airborne exposure
to diacetyl, then commonly used as an artificial butter flavoring in microwave popcorn and a to diacetyl, then commonly used as an artificial butter flavoring in microwave popcorn and a
flavoring in other food and beverage products, was linked to the lung disease flavoring in other food and beverage products, was linked to the lung disease bronchiolitis
obliterans, now commonly referred to as “popcorn lung.”27 According to GAO’s 2012 report on , now commonly referred to as “popcorn lung.”27 According to GAO’s 2012 report on
OSHA’s standard-setting processes, OSHA informed GAO that although the agency may have OSHA’s standard-setting processes, OSHA informed GAO that although the agency may have
been able to issue an ETS based on the grave danger posed by diacetyl, the actions taken by the been able to issue an ETS based on the grave danger posed by diacetyl, the actions taken by the
food and beverage industries, including reducing or removing diacetyl from products, made it less food and beverage industries, including reducing or removing diacetyl from products, made it less
likely that the necessity requirement could be met.28 likely that the necessity requirement could be met.28
ETS Duration
Section 6(c)(2) of the OSH Act provides that an ETS is effective until superseded by a permanent Section 6(c)(2) of the OSH Act provides that an ETS is effective until superseded by a permanent
standard promulgated pursuant to the normal rulemaking provisions of the OSH Act. Section standard promulgated pursuant to the normal rulemaking provisions of the OSH Act. Section
6(c)(3) of the OSH Act requires OSHA to promulgate a permanent standard within six months of 6(c)(3) of the OSH Act requires OSHA to promulgate a permanent standard within six months of

23 727 F.2d at 415, 425-427 (5th Cir. 1984). 23 727 F.2d at 415, 425-427 (5th Cir. 1984).
24 727 F.2d at 427 (5th Cir. 1984). 24 727 F.2d at 427 (5th Cir. 1984).
25 727 F.2d at 427 (5th Cir. 1984). The ETS mandated a permissible exposure limit (PEL) for asbestos of two asbestos 25 727 F.2d at 427 (5th Cir. 1984). The ETS mandated a permissible exposure limit (PEL) for asbestos of two asbestos
fibers per cubic centimeter of air (2.0 f/cc). fibers per cubic centimeter of air (2.0 f/cc).
26 727 F.2d at 427 (5th Cir. 1984). 26 727 F.2d at 427 (5th Cir. 1984).
27 See, for example, Centers for Disease Control and Prevention (CDC): National Institute for Occupational Safety and 27 See, for example, Centers for Disease Control and Prevention (CDC): National Institute for Occupational Safety and
Health (NIOSH), Health (NIOSH), NIOSH Alert: Preventing Lung Disease in Workers who Use or Make Flavorings, DHHS (NIOSH) , DHHS (NIOSH)
publication no. 2004–110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/. publication no. 2004–110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/.
28 GAO-12-330, 28 GAO-12-330, Workplace Safety and Health. .
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promulgating the ETS. As shown earlier in this report, six months is well outside of historical and promulgating the ETS. As shown earlier in this report, six months is well outside of historical and
currently expected time frames for developing and promulgating a standard under the notice and currently expected time frames for developing and promulgating a standard under the notice and
comment provisions of the APA and OSH Act, as well as under other relevant federal laws and comment provisions of the APA and OSH Act, as well as under other relevant federal laws and
executive orders. This dichotomy between the statutory mandate to promulgate a standard and the executive orders. This dichotomy between the statutory mandate to promulgate a standard and the
timelines that, based on historical precedent, other provisions in the OSH Act might realistically timelines that, based on historical precedent, other provisions in the OSH Act might realistically
require for such promulgation raises the question of whether or not OSHA could extend an ETS’s require for such promulgation raises the question of whether or not OSHA could extend an ETS’s
duration without going through the normal rulemaking process. The statute and legislative history duration without going through the normal rulemaking process. The statute and legislative history
do not clearly address this question. do not clearly address this question.
OSHA has used its ETS authority sparingly in its history and not since the asbestos ETS OSHA has used its ETS authority sparingly in its history and not since the asbestos ETS
promulgated in 1983. As shown inpromulgated in 1983. As shown in Table A-1 in the Appendix, of the nine times OSHA has issued in the Appendix, of the nine times OSHA has issued
an ETS, the courts have fully vacated or stayed the ETS in four cases and partially vacated the an ETS, the courts have fully vacated or stayed the ETS in four cases and partially vacated the
ETS in one case.29 Of the five cases that were not challenged or that were fully or partially upheld ETS in one case.29 Of the five cases that were not challenged or that were fully or partially upheld
by the courts, OSHA issued a permanent standard either within the six months required by the by the courts, OSHA issued a permanent standard either within the six months required by the
statute or within several months of the six-month period and always within one year of the statute or within several months of the six-month period and always within one year of the
promulgation of the ETS.30 Each of these cases, however, occurred before 1980, when a promulgation of the ETS.30 Each of these cases, however, occurred before 1980, when a
combination of additional federal laws and court decisions added additional procedural combination of additional federal laws and court decisions added additional procedural
requirements to the OSHA rulemaking process. OSHA did not attempt to extend the ETS’s requirements to the OSHA rulemaking process. OSHA did not attempt to extend the ETS’s
expiration date in any of these cases. expiration date in any of these cases.
Although the courts have not ruled directly on an attempt by OSHA to solely extend the life of an Although the courts have not ruled directly on an attempt by OSHA to solely extend the life of an
ETS, in 1974, the U.S. Court Appeals for the Fifth Circuit held in ETS, in 1974, the U.S. Court Appeals for the Fifth Circuit held in Florida Peach Growers Ass’n v.
United States Department of Labor that OSHA was within its authority to amend an ETS without that OSHA was within its authority to amend an ETS without
going through the normal rulemaking process.31 The court stated that “it is inconceivable that going through the normal rulemaking process.31 The court stated that “it is inconceivable that
Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency
situations, intended to limit his ability to react to developments subsequent to his initial situations, intended to limit his ability to react to developments subsequent to his initial
response.”32 The court also recognized the difficulty OSHA may have in promulgating a standard response.”32 The court also recognized the difficulty OSHA may have in promulgating a standard
within six months due to the notice and comment requirements of the OSH Act, stating that in the within six months due to the notice and comment requirements of the OSH Act, stating that in the
case of OSHA seeking to amend an ETS to expand its focus, “adherence to subsection (b) case of OSHA seeking to amend an ETS to expand its focus, “adherence to subsection (b)
procedures would not be in the best interest of employees, whom the Act is designed to protect. procedures would not be in the best interest of employees, whom the Act is designed to protect.
Such lengthy procedures could all too easily consume all of the temporary standard’s six months Such lengthy procedures could all too easily consume all of the temporary standard’s six months
life”33 life”33

29 Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: Reproductive Hazards as an 29 Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: Reproductive Hazards as an
Example,” Example,” Boston College Environmental Affairs Law Review, vol. 12, no. 4 (August 1985), p. 673. , vol. 12, no. 4 (August 1985), p. 673.
30 For example, OSHA promulgated the Acrylonitrile (vinyl cyanide) ETS on January 17, 1978, and the permanent 30 For example, OSHA promulgated the Acrylonitrile (vinyl cyanide) ETS on January 17, 1978, and the permanent
standard on October 3, 1978, with an effective date of November 2, 1978. The preamble to the permanent standard standard on October 3, 1978, with an effective date of November 2, 1978. The preamble to the permanent standard
published in the published in the Federal Register does not include information on the status of the ETS during the time between its does not include information on the status of the ETS during the time between its
expiration and the promulgation of the permanent standard. OSHA, “Occupational Exposure to Acrylonitrile (Vinyl expiration and the promulgation of the permanent standard. OSHA, “Occupational Exposure to Acrylonitrile (Vinyl
Cyanide),” 43Cyanide),” 43 Federal Register 45762, October 3, 1978. 45762, October 3, 1978.
31 489 F.2d. 120 (5th Cir. 1974). 31 489 F.2d. 120 (5th Cir. 1974).
32 489 F.2d. at 127 (5th Cir. 1974). 32 489 F.2d. at 127 (5th Cir. 1974).
33 489 F.2d. at 127 (5th Cir. 1974). 33 489 F.2d. at 127 (5th Cir. 1974).
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OSHA Standards Related to COVID-19
Current OSHA Standards
Currently, no OSHA standard directly covers exposure to airborne or aerosol diseases in the Currently, no OSHA standard directly covers exposure to airborne or aerosol diseases in the
workplace. As a result, OSHA is limited in its ability to enforce protections for healthcare and workplace. As a result, OSHA is limited in its ability to enforce protections for healthcare and
other workers who may be exposed to SARS-Cov-2, the virus that causes COVID-19.34 other workers who may be exposed to SARS-Cov-2, the virus that causes COVID-19.34
OSHA may enforce the General Duty Clause in the absence of a standard, if it can be determined OSHA may enforce the General Duty Clause in the absence of a standard, if it can be determined
that an employer has failed to provide a worksite free of “recognized hazards” that are “causing that an employer has failed to provide a worksite free of “recognized hazards” that are “causing
or are likely to cause death or serious physical harm” to workers.35 In addition, OSHA’s standards or are likely to cause death or serious physical harm” to workers.35 In addition, OSHA’s standards
for the use of personal protective equipment (PPE) may apply in cases in which workers require for the use of personal protective equipment (PPE) may apply in cases in which workers require
eye, face, hand, or respiratory protection against COVID-19 exposure.36 eye, face, hand, or respiratory protection against COVID-19 exposure.36
OSHA Respiratory Protection Standard
National Institute for Occupational Safety and Health Certification
The OSHA respiratory protection standard requires the use of respirators certified by NIOSH in The OSHA respiratory protection standard requires the use of respirators certified by NIOSH in
cases in which engineering controls, such as ventilation or enclosure of hazards, are insufficient cases in which engineering controls, such as ventilation or enclosure of hazards, are insufficient
to protect workers from breathing contaminated air.37 Surgical masks, procedure masks, and dust to protect workers from breathing contaminated air.37 Surgical masks, procedure masks, and dust
masks are not considered respirators. NIOSH certifies respirators pursuant to federal masks are not considered respirators. NIOSH certifies respirators pursuant to federal
regulations.38 For nonpowered respirators, such as filtering face piece respirators commonly used regulations.38 For nonpowered respirators, such as filtering face piece respirators commonly used
in healthcare and construction, NIOSH classifies respirators based on their efficiency at filtering in healthcare and construction, NIOSH classifies respirators based on their efficiency at filtering
airborne particles and their ability to protect against oil particles. Under the NIOSH classification airborne particles and their ability to protect against oil particles. Under the NIOSH classification
system, the letter (N, R, or P) indicates the level of oil protection as follows: N—no oil system, the letter (N, R, or P) indicates the level of oil protection as follows: N—no oil
protection; R—oil resistant; and P—oil proof. The number following the letter indicates the protection; R—oil resistant; and P—oil proof. The number following the letter indicates the
efficiency rating of the respirator as follows: 95—filters 95% of airborne particles; 97—filters efficiency rating of the respirator as follows: 95—filters 95% of airborne particles; 97—filters
97% of airborne particles; and 100—filters 99.7% of airborne particles. Thus an N95 respirator, 97% of airborne particles; and 100—filters 99.7% of airborne particles. Thus an N95 respirator,
the most common type, is one that does not protect against oil particles and filters out 95% of the most common type, is one that does not protect against oil particles and filters out 95% of
airborne particles. An R or P respirator can be used in place of an N respirator. airborne particles. An R or P respirator can be used in place of an N respirator.
A respirator that is past its manufacturer-designated shelf life is no longer considered to be A respirator that is past its manufacturer-designated shelf life is no longer considered to be
certified by NIOSH. However, in response to potential shortages in respirators, NIOSH has tested certified by NIOSH. However, in response to potential shortages in respirators, NIOSH has tested
and approved certain models of respirators for certified use beyond their manufacturer-designated and approved certain models of respirators for certified use beyond their manufacturer-designated
shelf lives.39 shelf lives.39
Respirators designed for certain medical and surgical uses are subject to both certification by Respirators designed for certain medical and surgical uses are subject to both certification by
NIOSH (for oil protection and efficiency) and regulation by the Food and Drug Administration NIOSH (for oil protection and efficiency) and regulation by the Food and Drug Administration
(FDA) as medical devices. In general, respirators with exhalation valves cannot be used in (FDA) as medical devices. In general, respirators with exhalation valves cannot be used in

34 OSHA has a standard on blood-borne pathogens (29 C.F.R. §1910.1030) but does not have a standard on pathogens 34 OSHA has a standard on blood-borne pathogens (29 C.F.R. §1910.1030) but does not have a standard on pathogens
transmitted by airborne droplets. transmitted by airborne droplets.
35 29 U.S.C. §654(a)(1). 35 29 U.S.C. §654(a)(1).
36 29 C.F.R. §§1910.133, 1910.134, and 1910.138. 36 29 C.F.R. §§1910.133, 1910.134, and 1910.138.
37 29 C.F.R. §1910.134. 37 29 C.F.R. §1910.134.
38 42 C.F.R. Part 8438 42 C.F.R. Part 84,.
39 NIOSH, 39 NIOSH, Release of Stockpiled Filtering Facepiece Respirators Beyond the Manufacturer-Designated Shelf Life:
Considerations for the COVID-19 Response, February 28, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/, February 28, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/
release-stockpiled-N95.html. release-stockpiled-N95.html.
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surgical and certain medical settings because, although the presence of an exhalation valve does surgical and certain medical settings because, although the presence of an exhalation valve does
not affect the respirator’s protection afforded the user, it may allow unfiltered air from the user not affect the respirator’s protection afforded the user, it may allow unfiltered air from the user
into a sterile field. On March 2, 2020, FDA issued an Emergency Use Authorization (EUA) to into a sterile field. On March 2, 2020, FDA issued an Emergency Use Authorization (EUA) to
approve for use in medical settings certain NIOSH-certified respirators not previously regulated approve for use in medical settings certain NIOSH-certified respirators not previously regulated
by FDA.40 by FDA.40
CDC Interim Guidance on Respiratory Protection
On March 10, 2020, the Centers for Disease Control and Prevention (CDC) updated its interim On March 10, 2020, the Centers for Disease Control and Prevention (CDC) updated its interim
guidance for the protection of healthcare workers against exposure to COVID-19 to permit guidance for the protection of healthcare workers against exposure to COVID-19 to permit
healthcare workers caring for known or suspected COVID-19 cases to use “facemasks” when healthcare workers caring for known or suspected COVID-19 cases to use “facemasks” when
respirators are not available or are in limited supply.41 This differs from the CDC’s 2007 respirators are not available or are in limited supply.41 This differs from the CDC’s 2007
guidelines for control of infectious agents in healthcare settings, which required the use of guidelines for control of infectious agents in healthcare settings, which required the use of
respirators for treatment of known or suspected cases.42 CDC states that respirators should be respirators for treatment of known or suspected cases.42 CDC states that respirators should be
prioritized for use in medical procedures likely to generate respiratory aerosols. Before this prioritized for use in medical procedures likely to generate respiratory aerosols. Before this
interim guidance was released, Representative Bobby Scott, Chairman of the House Committee interim guidance was released, Representative Bobby Scott, Chairman of the House Committee
on Education and Labor, and Representative Alma Adams, Chair of the Subcommittee on on Education and Labor, and Representative Alma Adams, Chair of the Subcommittee on
Workforce Protections, sent a letter to Secretary of Health and Human Services (HHS) Alex M. Workforce Protections, sent a letter to Secretary of Health and Human Services (HHS) Alex M.
Azar II expressing their opposition to this change in the interim standard.43 Azar II expressing their opposition to this change in the interim standard.43
Medical Evaluation and Fit Testing
The OSHA respiratory protection standard requires that the employer provide a medical The OSHA respiratory protection standard requires that the employer provide a medical
evaluation to the employee to determine if the employee is physiologically able to use a evaluation to the employee to determine if the employee is physiologically able to use a
respirator. This medical evaluation must be completed before any fit testing. For respirators respirator. This medical evaluation must be completed before any fit testing. For respirators
designed to fit tightly against the face, the specific type and model of respirator that an employee designed to fit tightly against the face, the specific type and model of respirator that an employee
is to use must be fit tested in accordance with the procedures provided in Appendix A of the is to use must be fit tested in accordance with the procedures provided in Appendix A of the
OSHA respiratory protection standard to ensure there is a complete seal around the respirator OSHA respiratory protection standard to ensure there is a complete seal around the respirator
when worn.44 Once an employee has been fit tested for a respirator, he or she is required to be fit when worn.44 Once an employee has been fit tested for a respirator, he or she is required to be fit
tested annually or whenever the model of respirator, but not the actual respirator itself, is tested annually or whenever the model of respirator, but not the actual respirator itself, is
changed. Each time an individual uses a respirator, he or she is required to perform a check of the changed. Each time an individual uses a respirator, he or she is required to perform a check of the
seal of the respirator to his or her face in accordance with the procedures provided in Appendix B seal of the respirator to his or her face in accordance with the procedures provided in Appendix B

40 Letter from RADM Denise M. Hinton, chief scientist, Food and Drug Administration (FDA), to Robert R. Redfield, 40 Letter from RADM Denise M. Hinton, chief scientist, Food and Drug Administration (FDA), to Robert R. Redfield,
Director, CDC, March 2, 2020, at https://www.fda.gov/media/135763/download. The list of respirators approved under Director, CDC, March 2, 2020, at https://www.fda.gov/media/135763/download. The list of respirators approved under
this Emergency Use Authorization (EUA) is in Appendix B to this letter, updated at https://www.fda.gov/media/this Emergency Use Authorization (EUA) is in Appendix B to this letter, updated at https://www.fda.gov/media/
135921/download. 135921/download.
41 Although the interim guidance does not specifically define the term 41 Although the interim guidance does not specifically define the term facemask, it does differentiate between a , it does differentiate between a
facemask and a respirator such that any recommendation to use a facemask does not require the use of a respirator. facemask and a respirator such that any recommendation to use a facemask does not require the use of a respirator.
CDC, CDC, Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed
Coronavirus Disease 2019 (COVID-19) in Healthcare Settings, updated March 10, 2020, at https://www.cdc.gov/, updated March 10, 2020, at https://www.cdc.gov/
coronavirus/2019-ncov/infection-control/control-recommendations.html. coronavirus/2019-ncov/infection-control/control-recommendations.html.
42 CDC, 42 CDC, 2007 Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Healthcare
Settings, updated July 2019, at https://www.cdc.gov/infectioncontrol/pdf/guidelines/isolation-guidelines-H.pdf. , updated July 2019, at https://www.cdc.gov/infectioncontrol/pdf/guidelines/isolation-guidelines-H.pdf.
43 Letter from Representative Robert C. “Bobby” Scott, chairman, House Committee on Education and Labor, and 43 Letter from Representative Robert C. “Bobby” Scott, chairman, House Committee on Education and Labor, and
Representative Alma S. Adams, chair, Subcommittee on Workforce Protections, to The Honorable Alex M. Azar II, Representative Alma S. Adams, chair, Subcommittee on Workforce Protections, to The Honorable Alex M. Azar II,
Secretary of Health and Human Services (HHS), March 9, 2020, at https://edlabor.house.gov/imo/media/doc/Secretary of Health and Human Services (HHS), March 9, 2020, at https://edlabor.house.gov/imo/media/doc/
Azar%20Redfield%20Letter_SIGNED%202020-03-09.pdf. Azar%20Redfield%20Letter_SIGNED%202020-03-09.pdf.
44 29 C.F.R. §1910.134 Appendix A. Powered air purifying respirators (PAPR) that do not require a seal to the user’s 44 29 C.F.R. §1910.134 Appendix A. Powered air purifying respirators (PAPR) that do not require a seal to the user’s
face do not need to be fit tested. face do not need to be fit tested.
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of the standard.45 On March 14, 2020, OSHA issued guidance permitting employers to suspend of the standard.45 On March 14, 2020, OSHA issued guidance permitting employers to suspend
annual fit testing of respirators for employees that have already been fit tested on the same model annual fit testing of respirators for employees that have already been fit tested on the same model
respirator. respirator.
Temporary OSHA Enforcement Guidance on the Respiratory Protection
Standard
In response to shortages of respirators and other PPE during the national response to the COVID- In response to shortages of respirators and other PPE during the national response to the COVID-
19 pandemic, OSHA has issued three sets of temporary enforcement guidance to permit the 19 pandemic, OSHA has issued three sets of temporary enforcement guidance to permit the
following exceptions to the respiratory protection standard: following exceptions to the respiratory protection standard:
1. Employers may suspend annual fit testing of respirators for employees that have 1. Employers may suspend annual fit testing of respirators for employees that have
already been fit tested on the same model respirator;46 already been fit tested on the same model respirator;46
2. Employers may permit the use of expired respirators and the extended use or 2. Employers may permit the use of expired respirators and the extended use or
reuse of respirators, provided the respirator maintains its structural integrity and reuse of respirators, provided the respirator maintains its structural integrity and
is not damaged, soiled, or contaminated (e.g., with blood, oil, or paint);47 and is not damaged, soiled, or contaminated (e.g., with blood, oil, or paint);47 and
3. Employers may permit the use of respirators not certified by NIOSH, but 3. Employers may permit the use of respirators not certified by NIOSH, but
approved under standards used by the following countries or jurisdictions, in approved under standards used by the following countries or jurisdictions, in
accordance with the protection equivalency tables provided in Appendices A and accordance with the protection equivalency tables provided in Appendices A and
B of the enforcement guidance document: B of the enforcement guidance document:
 Australia,  Australia,
 Brazil,  Brazil,
 European Union,  European Union,
 Japan,  Japan,
 Mexico,  Mexico,
 People’s Republic of China, and  People’s Republic of China, and
 Republic of Korea.48  Republic of Korea.48
Cal/OSHA Aerosol Transmissible Disease Standard
Although no OSHA standard specifically covers aerosol or airborne disease transmission, the Although no OSHA standard specifically covers aerosol or airborne disease transmission, the
California Division of Occupational Safety and Health (Cal/OSHA), under its state plan, California Division of Occupational Safety and Health (Cal/OSHA), under its state plan,
promulgated its aerosol transmissible disease (ATD) standard in 2009.49 The ATD standard covers promulgated its aerosol transmissible disease (ATD) standard in 2009.49 The ATD standard covers
most healthcare workers, laboratory workers, as well as workers in correctional facilities, most healthcare workers, laboratory workers, as well as workers in correctional facilities,
homeless shelters, and drug treatment programs. Under the ATD standard, SARS-Cov-2, the virus homeless shelters, and drug treatment programs. Under the ATD standard, SARS-Cov-2, the virus

45 29 C.F.R. §1910.134 Appendix B. 45 29 C.F.R. §1910.134 Appendix B.
46 OSHA, 46 OSHA, Temporary Enforcement Guidance - Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering
Facepieces During the COVID-19 Outbreak, March 14, 2020, at https://www.osha.gov/memos/2020-03-14/temporary-, March 14, 2020, at https://www.osha.gov/memos/2020-03-14/temporary-
enforcement-guidance-healthcare-respiratory-protection-annual-fit. enforcement-guidance-healthcare-respiratory-protection-annual-fit.
47 OSHA, 47 OSHA, Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease
2019 (COVID-19) Pandemic, April 3, 2020, at https://www.osha.gov/memos/2020-04-03/enforcement-guidance-, April 3, 2020, at https://www.osha.gov/memos/2020-04-03/enforcement-guidance-
respiratory-protection-and-n95-shortage-due-coronavirus. Under this guidance, employers are required to address in respiratory-protection-and-n95-shortage-due-coronavirus. Under this guidance, employers are required to address in
their written respiratory protection plans when respirators are contaminated and not available for use or reuse. their written respiratory protection plans when respirators are contaminated and not available for use or reuse.
48 OSHA, 48 OSHA, Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other
Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandemic, April 3, 2020, at , April 3, 2020, at
https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under. https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under.
49 Cal. Code Regs. tit. 8, §5199. 49 Cal. Code Regs. tit. 8, §5199.
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that causes COVID-19, is classified as a disease or pathogen requiring airborne isolation. This that causes COVID-19, is classified as a disease or pathogen requiring airborne isolation. This
classification subjects the virus to stricter control standards than diseases requiring only droplet classification subjects the virus to stricter control standards than diseases requiring only droplet
precautions, such as seasonal influenza.50 The key requirements of the ATD standard include precautions, such as seasonal influenza.50 The key requirements of the ATD standard include
 written ATD exposure control plan and procedures,  written ATD exposure control plan and procedures,
 training of all employees on COVID-19 exposure, use of PPE, and procedures if  training of all employees on COVID-19 exposure, use of PPE, and procedures if
exposed to COVID-19, exposed to COVID-19,
 engineering and work practice controls to control COVID-19 exposure, including  engineering and work practice controls to control COVID-19 exposure, including
the use of airborne isolation rooms, the use of airborne isolation rooms,
 provision of medical services to employees, including removal of exposed  provision of medical services to employees, including removal of exposed
employees, employees,
 specific requirements for laboratory workers, and  specific requirements for laboratory workers, and
 PPE requirements.  PPE requirements.
Cal/OSHA Aerosol Transmissible Disease PPE Requirements
The Cal/OSHA ATD standard requires that employers provide employees PPE, including gloves, The Cal/OSHA ATD standard requires that employers provide employees PPE, including gloves,
gowns or coveralls, eye protection, and respirators certified by NIOSH at least at the N95 level gowns or coveralls, eye protection, and respirators certified by NIOSH at least at the N95 level
whenever workers whenever workers
 enter or work in an airborne isolation room or area with a case or suspected case;  enter or work in an airborne isolation room or area with a case or suspected case;
 are present during procedures or services on a case or suspected case;  are present during procedures or services on a case or suspected case;
 repair, replace, or maintain air systems or equipment that may contain pathogens;  repair, replace, or maintain air systems or equipment that may contain pathogens;
 decontaminate an area that is or was occupied by a case or suspected case;  decontaminate an area that is or was occupied by a case or suspected case;
 are present during aerosol generating procedures on cadavers of cases or  are present during aerosol generating procedures on cadavers of cases or
suspected cases; suspected cases;
 transport a case or suspected case within a facility or within a vehicle when the  transport a case or suspected case within a facility or within a vehicle when the
patient is not masked; and patient is not masked; and
 are working with a viable virus in the laboratory.51  are working with a viable virus in the laboratory.51
In addition, a powered air purifying respirator (PAPR) with a high-efficiency particulate air In addition, a powered air purifying respirator (PAPR) with a high-efficiency particulate air
(HEPA) filter must be used whenever a worker performs a (HEPA) filter must be used whenever a worker performs a high-hazard procedure on a known or on a known or
suspected COVID-19 case.52 High-hazard procedures are those in which “the potential for being suspected COVID-19 case.52 High-hazard procedures are those in which “the potential for being
exposed to aerosol transmissible pathogens is increased due to the reasonably anticipated exposed to aerosol transmissible pathogens is increased due to the reasonably anticipated
generation of aerosolized pathogens”—they include intubation, airway suction, and caring for generation of aerosolized pathogens”—they include intubation, airway suction, and caring for
patients on positive pressure ventilation.53 Emergency medical services (EMS) workers may use patients on positive pressure ventilation.53 Emergency medical services (EMS) workers may use
N100, R100, or P100 respirators in place of PAPRs. N100, R100, or P100 respirators in place of PAPRs.

50 Cal. Code Regs. tit. 8, §5199 Appendix A. 50 Cal. Code Regs. tit. 8, §5199 Appendix A.
51 California Division of Occupational Safety and Health (Cal/OSHA), 51 California Division of Occupational Safety and Health (Cal/OSHA), Interim Guidance for Protecting Health Care
Workers from Exposure to Coronavirus Disease (COVID-19), March 2020, at https://www.dir.ca.gov/dosh/, March 2020, at https://www.dir.ca.gov/dosh/
Coronavirus-info.html. Coronavirus-info.html.
52 A PAPR uses a mechanical device to draw in room air and filter it before expelling that air over the user’s face. In 52 A PAPR uses a mechanical device to draw in room air and filter it before expelling that air over the user’s face. In
general, PAPRs do not require a tight seal to the user’s face and do not need to be fit tested. general, PAPRs do not require a tight seal to the user’s face and do not need to be fit tested.
53 Cal. Code Regs. tit. 8, §5199(b). 53 Cal. Code Regs. tit. 8, §5199(b).
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Cal/OSHA Interim Guidance on COVID-19
Cal/OSHA has issued interim guidance in response to shortages of respirators in the state due to Cal/OSHA has issued interim guidance in response to shortages of respirators in the state due to
the COVID-19 pandemic response.54 Under this interim guidance, if the supply of N95 respirators the COVID-19 pandemic response.54 Under this interim guidance, if the supply of N95 respirators
or PAPRs are insufficient to meet current or anticipated needs, surgical masks may be used for or PAPRs are insufficient to meet current or anticipated needs, surgical masks may be used for
low-hazard patient contacts that would otherwise require the use of respirators, and respirators low-hazard patient contacts that would otherwise require the use of respirators, and respirators
may be used for high-hazard procedures that would otherwise require the use of PAPRs. may be used for high-hazard procedures that would otherwise require the use of PAPRs.
OSHA Infectious Disease Standard Rulemaking
In 2010, OSHA published a Request for Information in the In 2010, OSHA published a Request for Information in the Federal Register seeking public seeking public
comments on strategies to control exposure to infectious diseases in healthcare workplaces.55 comments on strategies to control exposure to infectious diseases in healthcare workplaces.55
After collecting public comments and holding public meetings, OSHA completed the SBREFA After collecting public comments and holding public meetings, OSHA completed the SBREFA
process in 2014. Since then, however, no public actions have occurred on this rulemaking; since process in 2014. Since then, however, no public actions have occurred on this rulemaking; since
spring 2017, this rulemaking has been listed as a “long-term action” in DOL’s semiannual spring 2017, this rulemaking has been listed as a “long-term action” in DOL’s semiannual
regulatory agenda. regulatory agenda.
Congressional Activity to Require an OSHA
Emergency Temporary Standard on COVID-19
On March 5, 2020, Representative Bobby Scott, chairman of the House Committee on Education On March 5, 2020, Representative Bobby Scott, chairman of the House Committee on Education
and Labor, and Representative Alma Adams, chair of the Subcommittee on Workforce and Labor, and Representative Alma Adams, chair of the Subcommittee on Workforce
Protections, sent a letter to Secretary of Labor Eugene Scalia calling on OSHA to promulgate an Protections, sent a letter to Secretary of Labor Eugene Scalia calling on OSHA to promulgate an
ETS to address COVID-19 exposure among healthcare workers.56 This letter followed a January ETS to address COVID-19 exposure among healthcare workers.56 This letter followed a January
2020 letter requesting that OSHA reopen its rulemaking on the infectious disease standard and 2020 letter requesting that OSHA reopen its rulemaking on the infectious disease standard and
begin to formulate for possible future promulgation an ETS to address COVID-19 exposure.57 begin to formulate for possible future promulgation an ETS to address COVID-19 exposure.57
Senator Patty Murray, ranking member of the Senate Committee on Health, Education, Labor, Senator Patty Murray, ranking member of the Senate Committee on Health, Education, Labor,
and Pensions and a group of Democratic Senators sent a similar letter to the Secretary of Labor and Pensions and a group of Democratic Senators sent a similar letter to the Secretary of Labor
calling for an OSHA ETS.58 calling for an OSHA ETS.58
In addition, in March 2020, David Michaels, who served as the Assistant Secretary of Labor for In addition, in March 2020, David Michaels, who served as the Assistant Secretary of Labor for
Occupational Safety and Health during the Obama Administration, wrote an op-ed in Occupational Safety and Health during the Obama Administration, wrote an op-ed in The Atlantic
calling on OSHA to promulgate a COVID-19 ETS.59 On March 6, 2020, the AFL-CIO and 22 calling on OSHA to promulgate a COVID-19 ETS.59 On March 6, 2020, the AFL-CIO and 22
other unions petitioned OSHA for an ETS on other unions petitioned OSHA for an ETS on ~~COVID-19~~infectious diseases that would cover all workers that would cover all workers ~~with~~

54 California Division of Occupational Safety and Health (Cal/OSHA), 54 California Division of Occupational Safety and Health (Cal/OSHA), Cal/OSHA Interim Guidance on COVID-19 for
Health Care Facilities: Severe Respirator Supply Shortages, March 28, 2020, at https://www.dir.ca.gov/dosh/, March 28, 2020, at https://www.dir.ca.gov/dosh/
coronavirus/Cal-OSHA-Guidance-for-respirator-shortages.pdf. coronavirus/Cal-OSHA-Guidance-for-respirator-shortages.pdf.
55 OSHA, “Infectious Diseases,” 75 55 OSHA, “Infectious Diseases,” 75 Federal Register 24835, May 6, 2010. 24835, May 6, 2010.
56 Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams, 56 Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams,
chair, Subcommittee on Worker Protections, to The Honorable Eugene Scalia, Secretary of Labor, March 5, 2020, at chair, Subcommittee on Worker Protections, to The Honorable Eugene Scalia, Secretary of Labor, March 5, 2020, at
https://edlabor.house.gov/imo/media/doc/2020-03-05%20OSHA%20ETS%20Letter.pdf. https://edlabor.house.gov/imo/media/doc/2020-03-05%20OSHA%20ETS%20Letter.pdf.
57 Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams, 57 Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams,
chair, Subcommittee on Worker Protections, to The Honorable Eugene Scalia, Secretary of Labor, January 30, 2020, at chair, Subcommittee on Worker Protections, to The Honorable Eugene Scalia, Secretary of Labor, January 30, 2020, at
https://edlabor.house.gov/imo/media/doc/2020-01-30%20RCS%20to%20DOL%20Corona%20Letter_SIGNED1.pdf. https://edlabor.house.gov/imo/media/doc/2020-01-30%20RCS%20to%20DOL%20Corona%20Letter_SIGNED1.pdf.
58 Letter from Senator Patty Murray, ranking member, Senate Committee on Health, Education, Labor, and Pensions, 58 Letter from Senator Patty Murray, ranking member, Senate Committee on Health, Education, Labor, and Pensions,
Senator Robert Menendez, and Senator Tammy Baldwin, et al. to The Honorable Eugene Scalia, Secretary of Labor, Senator Robert Menendez, and Senator Tammy Baldwin, et al. to The Honorable Eugene Scalia, Secretary of Labor,
March 9, 2020, at https://www.baldwin.senate.gov/imo/media/doc/20200309%20OSHA%20ETS%20Letter.pdf. March 9, 2020, at https://www.baldwin.senate.gov/imo/media/doc/20200309%20OSHA%20ETS%20Letter.pdf.
59 David Michaels, “What Trump Could Do Right Now to Keep Workers Safe From the Coronavirus,” 59 David Michaels, “What Trump Could Do Right Now to Keep Workers Safe From the Coronavirus,” The Atlantic, ,
March 2, 2020, at https://www.theatlantic.com/ideas/archive/2020/03/use-osha-help-stem-covid-19-pandemic/607312/. March 2, 2020, at https://www.theatlantic.com/ideas/archive/2020/03/use-osha-help-stem-covid-19-pandemic/607312/.
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with potential exposures.60 OSHA formally denied the AFL-CIO petition on May 29, 2020, claiming that an ETS is not necessary to protect employees from infectious diseases generally, or from COVID-19.61 ~~potential exposures.60~~ National Nurses United submitted a similar petition requesting that OSHA National Nurses United submitted a similar petition requesting that OSHA
promulgate an ETS based largely on the Cal/OSHA ATD standard.promulgate an ETS based largely on the Cal/OSHA ATD standard.6162 On May 4, 2020, the Center On May 4, 2020, the Center
for Food Safety and Food Chain Workers Alliance submitted a petition requesting that OSHA for Food Safety and Food Chain Workers Alliance submitted a petition requesting that OSHA
promulgate an ETS to protect meat and poultry processing workers from COVID-19 exposure in promulgate an ETS to protect meat and poultry processing workers from COVID-19 exposure in
the workplace.the workplace.6263 On May 18, 2020, the AFL-CIO petitioned the U.S. Court of Appeals for the On May 18, 2020, the AFL-CIO petitioned the U.S. Court of Appeals for the
D.C. Circuit for a writ of mandamus to compel OSHA to promulgate a COVID-19 ETS.D.C. Circuit for a writ of mandamus to compel OSHA to promulgate a COVID-19 ETS.6364
H.R. 6139, the COVID-19 Health Care Worker Protection Act
of 2020
On March 9, 2020, Representative Bobby Scott introduced H.R. 6139, the COVID-19 Health On March 9, 2020, Representative Bobby Scott introduced H.R. 6139, the COVID-19 Health
Care Worker Protection Act of 2020. This bill would require OSHA to promulgate a COVID-19 Care Worker Protection Act of 2020. This bill would require OSHA to promulgate a COVID-19
ETS within one month of enactment. The ETS would be required to cover healthcare workers and ETS within one month of enactment. The ETS would be required to cover healthcare workers and
any workers in sectors determined by the CDC or OSHA to be at an elevated risk of COVID-19 any workers in sectors determined by the CDC or OSHA to be at an elevated risk of COVID-19
exposure. The ETS would be required to include an exposure control plan provision and be, at a exposure. The ETS would be required to include an exposure control plan provision and be, at a
minimum, based on CDC’s 2007 guidance and any updates to this guidance. The ETS would also minimum, based on CDC’s 2007 guidance and any updates to this guidance. The ETS would also
be required to provide no less protection than any state standard on novel pathogens, thus be required to provide no less protection than any state standard on novel pathogens, thus
requiring OSHA to include the elements of the Cal/OSHA ATD standard in this ETS. Title II of requiring OSHA to include the elements of the Cal/OSHA ATD standard in this ETS. Title II of
the bill would provide that hospitals and skilled nursing facilities that receive Medicare funding the bill would provide that hospitals and skilled nursing facilities that receive Medicare funding
and that are owned by state or local government units and not subject to state plans would be and that are owned by state or local government units and not subject to state plans would be
required to comply with the ETS.required to comply with the ETS.
Similar provisions are included in S. 3475. P.L. 116-127, the Families First Coronavirus Response Act
The provisions of H.R. 6139 were included as Division C of H.R. 6201, the Families First The provisions of H.R. 6139 were included as Division C of H.R. 6201, the Families First
Coronavirus Response Act, as introduced in the House. The American Hospital Association Coronavirus Response Act, as introduced in the House. The American Hospital Association
(AHA) issued an alert to its members expressing its opposition to the OSHA ETS provisions in (AHA) issued an alert to its members expressing its opposition to the OSHA ETS provisions in
the bill.the bill.6465 Specifically, the AHA opposed the requirement that the ETS be based on the CDC’s Specifically, the AHA opposed the requirement that the ETS be based on the CDC’s
2007 guidance. The AHA stated that unlike severe acute respiratory syndrome (SARS), which 2007 guidance. The AHA stated that unlike severe acute respiratory syndrome (SARS), which
was transmitted through the air, COVID-19 transmission is through droplets and surface contacts. was transmitted through the air, COVID-19 transmission is through droplets and surface contacts.
Thus, the requirement of the 2007 CDC guidance that N95 respirators, rather than surgical masks, Thus, the requirement of the 2007 CDC guidance that N95 respirators, rather than surgical masks,
~~be used for patient contact is not necessary to protect healthcare workers from COVID-19, and~~
~~the use of surgical masks is consistent with World Health Organization guidance. The AHA also~~
~~claimed that shortages of available respirators could reduce the capacity of hospitals to treat~~
~~COVID-19 patients, due to a lack of respirators for staff. The OSHA ETS provisions were not~~

60 Letter from Richard L. Trumka, president, AFL-CIO, to The Honorable Eugene Scalia, Secretary of Labor, March 6, 60 Letter from Richard L. Trumka, president, AFL-CIO, to The Honorable Eugene Scalia, Secretary of Labor, March 6,
2020, at https://aflcio.org/statements/petition-secretary-scalia-osha-emergency-temporary-standard-infectious-disease. 2020, at https://aflcio.org/statements/petition-secretary-scalia-osha-emergency-temporary-standard-infectious-disease.
61 Letter from 61 Letter from Loren Sweatt, Principal Deputy Assistant Secretary of Labor, to Richard L. Trumka, President, AFL-CIO, May 29, 2020. 62 Letter from Bonnie Castillo, executive director, National Nurses United, to The Honorable Eugene Scalia, Secretary Bonnie Castillo, executive director, National Nurses United, to The Honorable Eugene Scalia, Secretary
of Labor, and The Honorable Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and of Labor, and The Honorable Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and
Health, March 4, 2020, at https://act.nationalnursesunited.org/page/-/files/graphics/NNUPetitionOSHA03042020.pdf. Health, March 4, 2020, at https://act.nationalnursesunited.org/page/-/files/graphics/NNUPetitionOSHA03042020.pdf.
6263 Center for Food Safety and Food Chain Workers Alliance, Center for Food Safety and Food Chain Workers Alliance, Rulemaking Petition to the United States Department of
Labor, Occupational Safety and Health Administration, May 4, 2020, at https://www.centerforfoodsafety.org/files/, May 4, 2020, at https://www.centerforfoodsafety.org/files/
2020-05-04-osha-ets-petition_58890.pdf. 2020-05-04-osha-ets-petition_58890.pdf.
6364 In re: American Federation of Labor and Congress of Industrial Organizations, D.C. Cir., No. 19-1158, May 18, In re: American Federation of Labor and Congress of Industrial Organizations, D.C. Cir., No. 19-1158, May 18,
2020. This petition was filed in the U.S. Court of Appeals as Section 6(f) of the OSH Act [29 U.S.C. §655(f)] grants 2020. This petition was filed in the U.S. Court of Appeals as Section 6(f) of the OSH Act [29 U.S.C. §655(f)] grants
this court exclusive jurisdiction to provide judicial review of OSHA standards. this court exclusive jurisdiction to provide judicial review of OSHA standards.
6465 Emily Kopp, “Hospitals want to kill a policy shielding nurses from COVID-19 because there aren’t enough masks,” Emily Kopp, “Hospitals want to kill a policy shielding nurses from COVID-19 because there aren’t enough masks,”
Roll Call, March 3, 2020, at https://www.rollcall.com/2020/03/13/hospitals-want-to-kill-a-policy-shielding-nurses-, March 3, 2020, at https://www.rollcall.com/2020/03/13/hospitals-want-to-kill-a-policy-shielding-nurses-
from-covid-19-because-there-arent-enough-masks/. This alert is available to American Hospital Association (AHA) from-covid-19-because-there-arent-enough-masks/. This alert is available to American Hospital Association (AHA)
members on the AHA website at https://www.aha.org. members on the AHA website at https://www.aha.org.
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be used for patient contact is not necessary to protect healthcare workers from COVID-19, and the use of surgical masks is consistent with World Health Organization guidance. The AHA also claimed that shortages of available respirators could reduce the capacity of hospitals to treat COVID-19 patients, due to a lack of respirators for staff. The OSHA ETS provisions were not included in the version of the legislation that was passed by the House and the Senate and signed included in the version of the legislation that was passed by the House and the Senate and signed
into law as P.L. 116-127. into law as P.L. 116-127.
H.R. 6379, the Take Responsibility for Workers and Families Act
Division D of H.R. 6379, the Take Responsibility for Workers and Families Act, as introduced in Division D of H.R. 6379, the Take Responsibility for Workers and Families Act, as introduced in
the House on March 23, 2020, includes the requirement that OSHA promulgate an ETS on the House on March 23, 2020, includes the requirement that OSHA promulgate an ETS on
COVID-19 within seven days of enactment and a permanent COVID-19 standard within 24 COVID-19 within seven days of enactment and a permanent COVID-19 standard within 24
months of enactment to cover healthcare workers, firefighters and emergency response workers, months of enactment to cover healthcare workers, firefighters and emergency response workers,
and workers in other occupations that CDC or OSHA determines to have an elevated risk of and workers in other occupations that CDC or OSHA determines to have an elevated risk of
COVID-19 exposure. Division D of H.R. 6379 would amend the OSH Act, for the purposes of the COVID-19 exposure. Division D of H.R. 6379 would amend the OSH Act, for the purposes of the
ETS only, such that state and local government employers in states without state plans would be ETS only, such that state and local government employers in states without state plans would be
covered by the ETS. The provisions of Division D of H.R. 6379 were also included in S. 3584, covered by the ETS. The provisions of Division D of H.R. 6379 were also included in S. 3584,
the COVID–19 Workers First Protection Act of 2020, as introduced in the Senate. the COVID–19 Workers First Protection Act of 2020, as introduced in the Senate.
This legislation would specifically provide that the ETS would remain in force until the This legislation would specifically provide that the ETS would remain in force until the
permanent standard is promulgated and would explicitly exempt the ETS from the Regulatory permanent standard is promulgated and would explicitly exempt the ETS from the Regulatory
Flexibility Act, Paperwork Reduction Act, and Executive Order 12866. OSHA would be granted Flexibility Act, Paperwork Reduction Act, and Executive Order 12866. OSHA would be granted
enforcement discretion in cases in which it is not feasible for an employer to fully comply with enforcement discretion in cases in which it is not feasible for an employer to fully comply with
the ETS (such as a case in which PPE is unavailable) if the employer is exercising due diligence the ETS (such as a case in which PPE is unavailable) if the employer is exercising due diligence
to comply and implementing alternative means to protect employees. to comply and implementing alternative means to protect employees.
Like the provisions in H.R. 6139 and the version of H.R. 6201 introduced in the House, the ETS Like the provisions in H.R. 6139 and the version of H.R. 6201 introduced in the House, the ETS
and permanent standard under H.R. 6379 would be required to include an exposure control plan and permanent standard under H.R. 6379 would be required to include an exposure control plan
and provide no less protection than any state standard on novel pathogens, thus requiring OSHA and provide no less protection than any state standard on novel pathogens, thus requiring OSHA
to include the elements of the Cal/OSHA ATD standard in this ETS and permanent standard. to include the elements of the Cal/OSHA ATD standard in this ETS and permanent standard.
Although the ETS provisions in H.R. 6139 and H.R. 6201 would require that the ETS be based on Although the ETS provisions in H.R. 6139 and H.R. 6201 would require that the ETS be based on
the 2007 CDC guidance, specific reference to the 2007 guidance is not included in this the 2007 CDC guidance, specific reference to the 2007 guidance is not included in this
legislation. Rather, under H.R. 6379, the ETS and permanent standard would have to incorporate, legislation. Rather, under H.R. 6379, the ETS and permanent standard would have to incorporate,
as appropriate, “guidelines issued by the Centers for Disease Control and Prevention, and the as appropriate, “guidelines issued by the Centers for Disease Control and Prevention, and the
National Institute for Occupational Safety and Health, which are designed to prevent the National Institute for Occupational Safety and Health, which are designed to prevent the
transmission of infectious agents in healthcare settings” and scientific research on novel transmission of infectious agents in healthcare settings” and scientific research on novel
pathogens. pathogens.
States with occupational safety and health plans would be required to adopt the ETS, or their own States with occupational safety and health plans would be required to adopt the ETS, or their own
ETSs at least as effective as the ETS, within 14 days of the legislation’s enactment. ETSs at least as effective as the ETS, within 14 days of the legislation’s enactment.
H.R. 6559, the COVID-19 Every Worker Protection Act of 2020
H.R. 6559, the COVID-19 Every Worker Protection Act of 2020, was introduced in the House by H.R. 6559, the COVID-19 Every Worker Protection Act of 2020, was introduced in the House by
Representative Bobby Scott on April 21, 2020. This legislation includes the ETS and permanent Representative Bobby Scott on April 21, 2020. This legislation includes the ETS and permanent
standard provisions of Division D of H.R. 6379 and S. 3584 and would require that these standard provisions of Division D of H.R. 6379 and S. 3584 and would require that these
standards cover healthcare workers, emergency medical responders, and “other employees at standards cover healthcare workers, emergency medical responders, and “other employees at
occupational risk” of COVID-19 exposure. This legislation also adds two provisions that would occupational risk” of COVID-19 exposure. This legislation also adds two provisions that would
clarify the requirements for employers to record work-related COVID-19 infections and clarify the requirements for employers to record work-related COVID-19 infections and
strengthen the protections against retaliation and discrimination offered to whistleblowers.strengthen the protections against retaliation and discrimination offered to whistleblowers.
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COVID-19 Recordkeeping
Sections 8(c) and 24(a) of the OSH Act require employers to maintain records of occupational Sections 8(c) and 24(a) of the OSH Act require employers to maintain records of occupational
injuries and illnesses in accordance with OSHA regulations.injuries and illnesses in accordance with OSHA regulations.6566 OSHA’s reporting and OSHA’s reporting and
recordkeeping regulations require that employers with 10 or more employees must keep records recordkeeping regulations require that employers with 10 or more employees must keep records
of work-related injuries and illnesses that result in lost work time for employees or that require of work-related injuries and illnesses that result in lost work time for employees or that require
medical care beyond first aid.medical care beyond first aid.6667 Employers must also report to OSHA, within 8 hours, any Employers must also report to OSHA, within 8 hours, any
workplace fatality, and within 24 hours, any injury or illness that results in in-patient workplace fatality, and within 24 hours, any injury or illness that results in in-patient
hospitalization, amputation, or loss of an eye. Employers in certain industries determined by hospitalization, amputation, or loss of an eye. Employers in certain industries determined by
OSHA to have lower occupational safety and health hazards are listed in the regulations as being OSHA to have lower occupational safety and health hazards are listed in the regulations as being
exempt from the recordkeeping requirements but not the requirement to report serious injuries, exempt from the recordkeeping requirements but not the requirement to report serious injuries,
illnesses, and deaths to OSHA.illnesses, and deaths to OSHA.6768 Offices of physicians, dentists, other health practitioners, and Offices of physicians, dentists, other health practitioners, and
outpatient medical clinics are included in the industries that are exempt from the recordkeeping outpatient medical clinics are included in the industries that are exempt from the recordkeeping
requirements. requirements.
OSHA regulations require the employer to determine if an employee’s injury or illness is related OSHA regulations require the employer to determine if an employee’s injury or illness is related
to his or her work and thus subject to the recordkeeping requirements.to his or her work and thus subject to the recordkeeping requirements.6869 The regulations provide a The regulations provide a
presumption that an injury or illness that occurs in the workplace is work-related and recordable, presumption that an injury or illness that occurs in the workplace is work-related and recordable,
unless one of the exemptions provided in the regulations applies.unless one of the exemptions provided in the regulations applies.6970 One of the listed exemptions is One of the listed exemptions is
as follows: as follows:
The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, The illness is the common cold or flu (Note: contagious diseases such as tuberculosis,
brucellosis, hepatitis A, or plague are considered work-related if the employee is infected brucellosis, hepatitis A, or plague are considered work-related if the employee is infected
at work).at work).7071
Because of the nature of COVID-19 transmission, which can occur in the community as well as Because of the nature of COVID-19 transmission, which can occur in the community as well as
the workplace, it can be difficult to determine the exact source of any person’s COVID-19 the workplace, it can be difficult to determine the exact source of any person’s COVID-19
transmission. This may make it difficult for employers to determine if an employee’s COVID-19 transmission. This may make it difficult for employers to determine if an employee’s COVID-19
is subject to the recordkeeping requirements. is subject to the recordkeeping requirements.
Initial OSHA Recordkeeping Guidance
On April 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be On April 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be
treated under the recordkeeping requirements.treated under the recordkeeping requirements.7172 This guidance stated that COVID-19 cases were This guidance stated that COVID-19 cases were
recordable if they were work-related. recordable if they were work-related.
Under this guidance, employers in the following industry groups were to fully comply with the Under this guidance, employers in the following industry groups were to fully comply with the
recordkeeping regulations, including the requirement to determine if COVID-19 cases were recordkeeping regulations, including the requirement to determine if COVID-19 cases were
work-related: work-related:
 healthcare;  healthcare;
 emergency response, including firefighting, emergency medical services, and law  emergency response, including firefighting, emergency medical services, and law
enforcement; and enforcement; and

6566 29 U.S.C. §§657(c) and 673(a). 29 U.S.C. §§657(c) and 673(a).
6667 OSHA’s reporting and recordkeeping regulations are at 29 C.F.R. Part 1904. OSHA’s reporting and recordkeeping regulations are at 29 C.F.R. Part 1904.
6768 The list of exempted industries is at 29 C.F.R. Subpart B, Appendix A. States with state occupational safety and The list of exempted industries is at 29 C.F.R. Subpart B, Appendix A. States with state occupational safety and
health plans may require employers in these exempted industries to comply with the recordkeeping requirements. health plans may require employers in these exempted industries to comply with the recordkeeping requirements.
6869 29 C.F.R. §1904.5. 29 C.F.R. §1904.5.
6970 29 C.F.R. §1905.5(a). 29 C.F.R. §1905.5(a).
7071 29 C.F.R. §1904.5(b)(2)(viii). 29 C.F.R. §1904.5(b)(2)(viii).
7172 OSHA, OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), April 10, 2020, at , April 10, 2020, at
https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19. https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
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 correctional institutions.  correctional institutions.
For all other employers, OSHA required employers to determine if COVID-19 cases were work- For all other employers, OSHA required employers to determine if COVID-19 cases were work-
related and subject to the recordkeeping requirements only if both of the following two conditions related and subject to the recordkeeping requirements only if both of the following two conditions
were met: were met:
1. There was objective evidence that a COVID-19 case may have been work- 1. There was objective evidence that a COVID-19 case may have been work-
related. This could have included, for example, a number of cases developing related. This could have included, for example, a number of cases developing
among workers who worked closely together without an alternative explanation. among workers who worked closely together without an alternative explanation.
2. The evidence of work-relatedness was reasonably available to the employer. For 2. The evidence of work-relatedness was reasonably available to the employer. For
purposes of this guidance, examples of reasonably available evidence included purposes of this guidance, examples of reasonably available evidence included
information given to the employer by employees, as well as information that an information given to the employer by employees, as well as information that an
employer learned regarding its employees’ health and safety in the ordinary employer learned regarding its employees’ health and safety in the ordinary
course of managing its business and employees. course of managing its business and employees.
Updated OSHA Recordkeeping Guidance
OSHA issued new guidance, effective May 26, 2020, on recordkeeping of COVID-19 cases.OSHA issued new guidance, effective May 26, 2020, on recordkeeping of COVID-19 cases.7273
This new guidance rescinds the previous guidance issued by OSHA on April 10, 2020. Under this This new guidance rescinds the previous guidance issued by OSHA on April 10, 2020. Under this
new guidance, all employers, regardless of type of industry or employment, are subject to the new guidance, all employers, regardless of type of industry or employment, are subject to the
recordkeeping and recording regulations for work-related cases of COVID-19. To determine if an recordkeeping and recording regulations for work-related cases of COVID-19. To determine if an
employer has made a reasonable determination that a case of COVID-19 was work-related, employer has made a reasonable determination that a case of COVID-19 was work-related,
OSHA says it will consider the following factors: OSHA says it will consider the following factors:
 the reasonableness of the employer’s investigation of the COVID-19 case and its  the reasonableness of the employer’s investigation of the COVID-19 case and its
transmission to the employee; transmission to the employee;
 the evidence that is available to the employer; and  the evidence that is available to the employer; and
 the evidence that COVID-19 was contracted at work.  the evidence that COVID-19 was contracted at work.
The guidance provides examples of evidence that can be used to demonstrate that a COVID-19 The guidance provides examples of evidence that can be used to demonstrate that a COVID-19
case was or was not work-related such as if an employee had frequent close contact with case was or was not work-related such as if an employee had frequent close contact with
members of the public in an area with ongoing community transmission of COVID-19. members of the public in an area with ongoing community transmission of COVID-19.
H.R. 6559
H.R. 6559 would require that the ETS and permanent standard established pursuant to the H.R. 6559 would require that the ETS and permanent standard established pursuant to the
legislation include the requirement for the recording and reporting of all COVID-19 cases in legislation include the requirement for the recording and reporting of all COVID-19 cases in
accordance with OSHA regulations in place at the time of enactment. By referencing the accordance with OSHA regulations in place at the time of enactment. By referencing the
regulations in place, this provision would serve to supersede OSHA’s guidance from April 10, regulations in place, this provision would serve to supersede OSHA’s guidance from April 10,
2020, and apply the requirement, currently provided in the guidance effective May 26, 2020, to 2020, and apply the requirement, currently provided in the guidance effective May 26, 2020, to
determine the work-relatedness of COVID-19 cases to all employers covered by the determine the work-relatedness of COVID-19 cases to all employers covered by the
recordkeeping regulations. recordkeeping regulations.

7273 OSHA, OSHA, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), May 19, , May 19,
2020, at https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-2020, at https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-
disease-2019-covid-19. disease-2019-covid-19.
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Whistleblower Protections
Section 11(c) of the OSH Act prohibits any person from retaliating or discriminating against any Section 11(c) of the OSH Act prohibits any person from retaliating or discriminating against any
employee who exercises certain rights provided by the OSH Act.employee who exercises certain rights provided by the OSH Act.7374 Commonly referred to as the Commonly referred to as the
whistleblower protection provision, this provision protects any employee who takes any of the whistleblower protection provision, this provision protects any employee who takes any of the
following actions: following actions:
 files a complaint with OSHA related to a violation of the OSH Act;  files a complaint with OSHA related to a violation of the OSH Act;
 causes an OSHA proceeding, such as an investigation, to be instituted;  causes an OSHA proceeding, such as an investigation, to be instituted;
 testifies or is about to testify in any OSHA proceeding; and  testifies or is about to testify in any OSHA proceeding; and
 exercises on his or her own behalf, or on behalf of others, any other rights  exercises on his or her own behalf, or on behalf of others, any other rights
afforded by the OSH Act. afforded by the OSH Act.7475
Other rights afforded by the OSH Act that are covered by the whistleblower protection provision Other rights afforded by the OSH Act that are covered by the whistleblower protection provision
include the right to inform the employer about unsafe work conditions; the right to access include the right to inform the employer about unsafe work conditions; the right to access
material safety data sheets or other information required to be made available by the employer; material safety data sheets or other information required to be made available by the employer;
and the right to report a work-related injury, illness, or death to OSHA.and the right to report a work-related injury, illness, or death to OSHA.7576 In limited cases, the In limited cases, the
employee has the right to refuse to work if conditions reasonably present a risk of serious injury employee has the right to refuse to work if conditions reasonably present a risk of serious injury
or death and there is not sufficient time to eliminate the danger through other means.or death and there is not sufficient time to eliminate the danger through other means.7677
H.R. 6559 would require that the ETS and permanent standard promulgated pursuant to the H.R. 6559 would require that the ETS and permanent standard promulgated pursuant to the
legislation expand the protections for whistleblowers. The following additional activities taken by legislation expand the protections for whistleblowers. The following additional activities taken by
employees would grant them protection from retaliation and discrimination from employers and employees would grant them protection from retaliation and discrimination from employers and
agents of employers: agents of employers:
 reporting to the employer; a local, state, or federal agency; or the media; or on a  reporting to the employer; a local, state, or federal agency; or the media; or on a
social media platform; the following: social media platform; the following:
 a violation of the ETS or permanent standard promulgated pursuant to the  a violation of the ETS or permanent standard promulgated pursuant to the
legislation; legislation;
 a violation of the infectious disease control plan required by the ETS or  a violation of the infectious disease control plan required by the ETS or
permanent standard; or permanent standard; or
 a good-faith concern about an infectious disease hazard in the workplace;  a good-faith concern about an infectious disease hazard in the workplace;
 seeking assistance from the employer or a local, state, or federal agency with  seeking assistance from the employer or a local, state, or federal agency with
such a report; and such a report; and
 using personally supplied PPE with a higher level of protection than offered by  using personally supplied PPE with a higher level of protection than offered by
the employer. the employer.

7374 29 U.S.C. §660(c). OSHA also enforces whistleblower provisions in 22 other federal statutes. Information on statutes 29 U.S.C. §660(c). OSHA also enforces whistleblower provisions in 22 other federal statutes. Information on statutes
with whistleblower provisions enforced by OSHA is at OSHA, with whistleblower provisions enforced by OSHA is at OSHA, Whistleblower Statutes Summary Chart, October 17, , October 17,
2009, https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart-10.8-Final.pdf. 2009, https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart-10.8-Final.pdf.
7475 29 C.F.R. §1977.3. Public-sector employees, except employees of the United States Postal Service, are not protected 29 C.F.R. §1977.3. Public-sector employees, except employees of the United States Postal Service, are not protected
by the whistleblower provision, but may be covered by whistleblower provisions in other federal and state statutes. by the whistleblower provision, but may be covered by whistleblower provisions in other federal and state statutes.
7576 For additional information on other rights covered by the whistleblower protection provision, see OSHA, January 9, For additional information on other rights covered by the whistleblower protection provision, see OSHA, January 9,
2019, 2019, Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection
Provision, pp. 5-7, at https://www.osha.gov/sites/default/files/11cDeskAid.pdf. , pp. 5-7, at https://www.osha.gov/sites/default/files/11cDeskAid.pdf.
7677 29 C.F.R. §1977.12(b)(2). 29 C.F.R. §1977.12(b)(2).
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H.R. 6800, ~~the Health and Economic Recovery Omnibus Emergency~~
~~Solutions Act (HEROES Act)~~The Heroes Act
The provisions of H.R. 6559, including the provisions relating to recordkeeping and The provisions of H.R. 6559, including the provisions relating to recordkeeping and
whistleblower protections, were included as Title III of Division L of H.R. 6800, whistleblower protections, were included as Title III of Division L of H.R. 6800, ~~the Health and~~
~~Economic Recovery Omnibus Emergency Solutions Act (HEROES Act). H.R. 6800 was passed~~
~~by the House on May 15, 2020.~~
The Heroes Act. H.R. 6800 was passed by the House on May 15, 2020. In a letter to Speaker of the House Nancy Pelosi, the AHA expressed its opposition to the ETS provisions in The Heroes Act citing the potential for confusion that new regulations could bring and the “ongoing global lack of supplies, equipment and testing capability” faced by hospitals.78 The AHA also stated that the provision that would require the ETS to be based on state standards “suggests that the federal government is surrendering its responsibility to appropriately regulate the nation to a state government agency without consideration of whether that state’s decisions are appropriate for implementation anywhere and everywhere.” 78 Letter from Thomas P. Nickels, Executive Vice President, American Hospital Association, to Hon. Nancy Pelosi, Speaker, U.S. House of Representatives, May 14, 2020, https://www.aha.org/system/files/media/file/2020/05/web-AHALettertoHouseonHEROESAct051420final.pdf. Congressional Research Service Congressional Research Service
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Appendix.
Table A-1. OSHA Emergency Temporary Standards (ETS)
Federal Register
Result of Judicial
Judicial Review
Year
Subject of ETS
Citation of ETS
Review
Case Citation
1971 1971
Asbestos Asbestos
36 36 Federal Register
Not challenged Not challenged
— —
23207 (December 7, 23207 (December 7,
1971) 1971)
1973 1973
Organophosphorous Organophosphorous
38 38 Federal Register
Vacated Vacated
Florida Peach Growers
pesticides pesticides
10715 (May 1, 1973); 10715 (May 1, 1973);
Ass'n v. United States
amended by 38 amended by 38 Federal
Department of Labor,
Register 17214 (June 17214 (June
489 F.2d 120 (5th Cir. 489 F.2d 120 (5th Cir.
29, 1973) 29, 1973)
1974) 1974)
1973 1973
Fourteen carcinogens Fourteen carcinogens
38 38 Federal Register
Twelve upheld, two Twelve upheld, two
Dry Color Mfrs. Ass'n v.
10929 (May 3, 1973) 10929 (May 3, 1973)
vacated vacated
Department of Labor,
486 F.2d 98 (3d Cir. 486 F.2d 98 (3d Cir.
1973) 1973)
1974 1974
Vinyl chloride Vinyl chloride
39 39 Federal Register
Not challenged Not challenged
— —
12342 (April 5, 1974) 12342 (April 5, 1974)
1976 1976
Diving operations Diving operations
41 41 Federal Register
Stayed Stayed
Taylor Diving & Salvage
24271 (June 15, 1976) 24271 (June 15, 1976)
Co. v. Department of
Labor, 537 F.2d 819 , 537 F.2d 819
(5th Cir. 1976) (5th Cir. 1976)
1977 1977
Benzene Benzene
42 42 Federal Register
Stayed Stayed
Industrial Union Dep't v.
22515 (May 3, 1977) 22515 (May 3, 1977)
Bingham, 570 F.2d 965 , 570 F.2d 965
(D.C. Cir. 1977) (D.C. Cir. 1977)
1977 1977
1,2 Dibromo-3- 1,2 Dibromo-3-
42 42 Federal Register
Not challenged Not challenged
— —
chloropropane (DBCP) 45535 (September 9, chloropropane (DBCP) 45535 (September 9,
1977) 1977)
1978 1978
Acrylonitrile (vinyl Acrylonitrile (vinyl
43 43 Federal Register
Stay denied Stay denied
Vistron v. OSHA, 6 , 6
cyanide) cyanide)
2585 (January 17, 2585 (January 17,
OSHC 1483 (6th Cir. OSHC 1483 (6th Cir.
1978) 1978)
1978) 1978)
1983 1983
Asbestos Asbestos
48 48 Federal Register
Stayed Stayed
Asbestos Info. Ass'n v.
51086 (November 4, 51086 (November 4,
OSHA, 727 F.2d 415 , 727 F.2d 415
1983) 1983)
(5th Cir. 1984) (5th Cir. 1984)
Source: CRS with data from Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: CRS with data from Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking:
Reproductive Hazards as an Example,” Reproductive Hazards as an Example,” Boston College Environmental Affairs Law Review, vol. 12, no. 4 (August , vol. 12, no. 4 (August
1985), p. 673. 1985), p. 673.

Author Information

Scott D. Szymendera Scott D. Szymendera

Analyst in Disability Policy Analyst in Disability Policy

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R46288 R46288 · VERSION 810 · UPDATED
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