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 June 11, 2020 to July 27, 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 ~~June 11~~July 27, 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-temporary standard (ETS) to protect workers from exposure to SARS-~~Cov~~CoV-2, the virus that causes Coronavirus Disease 2019 -2, the virus that causes Coronavirus Disease 2019
(COVID-19).(COVID-19). The Occupational Safety and Health Act of 1970 (OSH Act) gives OSHA the ability to promulgate an ETS that 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.
The Virginia state occupational safety and health plan (VOSH) has promulgated an ETS that directly addresses employee exposure to SARS-CoV-2. This standard requires employers to determine the level of COVID-19 risks associated with their job tasks and provides requirements for engineering, administrative and work practice controls, and the provision of personal protection equipment (PPE) based on risk levels. The VOSH ETS also expands on the existing OSHA whistleblower protection standard to protect employees who raise concerns about COVID-19 exposure in the media or through social media. H.R. 6139, the COVID-19 ~~H.R. 6139, the COVID-19~~ Health Care Worker Protection Act of 2020, would require OSHA to promulgate an ETS on Health Care Worker Protection Act of 2020, would require OSHA to promulgate an ETS on
COVID-19COVID-19 that incorporates both the Cal/OSHA ATD standard and the Centers for Disease Control and Prevention’s 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, with similar provisions in S. (CDC’s) 2007 guidelines on occupational exposure to infectious agents in healthcare settings, with similar provisions in S.
3475. The CDC’s 2007 guidelines generally require stricter controls than its interim guidance on COVID-19 exposure. The 3475. The CDC’s 2007 guidelines generally require stricter controls than its interim guidance on COVID-19 exposure. The
provisions of H.R. 6139provisions of H.R. 6139 were incorporated into the version of H.R. 6201,were incorporated into the version of H.R. 6201, the Families First Coronavirus Response Act, as the Families First Coronavirus Response Act, as
introduced in the House. introduced in the House. ~~However, the~~The OSHA ETS provisions were not included in the version of legislation that passed 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. House and the Senate and was signed into law as P.L. 116-127.
H.R. 6379, as introduced in the House, also H.R. 6379, as introduced in the House, also ~~includes~~would include a requirement for an OSHA ETS and permanent standard to address a requirement for an OSHA ETS and permanent standard to address
COVID-19 exposure, with similar provisions in S. 3584. H.R. 6559 COVID-19 exposure, with similar provisions in S. 3584. H.R. 6559 ~~includes~~would include the requirements for an ETS and permanent the requirements for an ETS and permanent
standard, standard, ~~clarifies~~clarify the requirement that employers must report work-related COVID-19 cases, and the requirement that employers must report work-related COVID-19 cases, and ~~expands~~ expand protections for protections for
whistleblowers, with similar provisions in S. 3677. The provisions of H.R. 6559 were included in H.R. 6800, The Heroes whistleblowers, with similar provisions in S. 3677. The provisions of H.R. 6559 were included in H.R. 6800, The Heroes
Act, passed by the House on May 15, 2020. Act, passed by the House on May 15, 2020.
The American Hospital Association (AHA) claims that because SARS- The American Hospital Association (AHA) claims that because SARS-~~Cov~~CoV-2 is primarily transmitted by airborne droplets -2 is primarily transmitted by airborne droplets
and surface contacts, surgical masks (rather than N95 respirators) are sufficient protection for workers coming into routine and surface contacts, surgical masks (rather than N95 respirators) are sufficient protection for workers coming into routine
contact with COVID-19 cases. However, the global shortage of respirators and other equipment and the lack of sufficient contact with COVID-19 cases. However, the global shortage of respirators and other equipment and the lack of sufficient
testing capacity may adversely impact some hospitals’ capacities to treat patients if stricter requirements to provide personal testing capacity may adversely impact some hospitals’ capacities to treat patients if stricter requirements to provide personal
protective equipment (PPE) to employees were to be enacted. The AHA also opposes provisions that would require an ETS 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. to be based on existing state occupational safety and health standards.

Congressional Research Service Congressional Research Service

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 requires that ~~all~~ al employers under OSHA’s jurisdiction provide workplaces free of “recognized 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 entitiesstate plan, it also must cover state and local government entities, such as public schools, not covered by OSHA. Currently, not covered by OSHA. Currently,
21 states and Puerto Rico have state plans that cover 21 states and Puerto Rico have state plans that cover ~~all~~ al employers, and 5 states and the U.S. 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 by the OSH Act.5 In the remaining states, state and local government employers are not covered 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 or states may adopt their own standards that are at least as effective as OSHA’s standards. 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~~

~~1 29 U.S.C. §655. The~~ 1 29 U.S.C. §655. T he provisions of the Occupational Safety and Health Act of 1970 (OSH provisions of the Occupational Safety and Health Act of 1970 (OSH Act) are extended to the Act) are extended to the
legislative branch aslegislative branch as an employer by the Congressional Accountability Act (an employer by the Congressional Accountability Act ( P.L. 104-1). P.L. 104-1).
2 29 U.S.C. 2 29 U.S.C. §654(a)(1). §654(a)(1).
3 29 U.S.C.3 29 U.S.C. §667. §667.
4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see ~~CRS~~ CRS Report Report
R43969, R43969, OSHA State Plans: In Brief, ~~with Examples from~~ with Exam ples from California and Arizona . .
5 Information on specific state plans is available from the OSHA 5 Information on specific state plans is available from the OSHA ~~website~~ website at https://www.osha.gov/stateplans. at https://www.osha.gov/stateplans.
6 Per Section 6(b)(1) of the OSH6 Per Section 6(b)(1) of the OSH ~~Act~~ Act [29 §655(b)(1)], a petition may be submitted by “[29 §655(b)(1)], a petition may be submitted by “ an interested person, a 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 Servicesorganization, the Secretary of Health and Human Services (HHS), the National Institute for Occupational Safety and Health, or , the National Institute for Occupational Safety and Health, or
a state or political subdivision.” a state or political subdivision.”
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OSHA: ETS and COVID-19

standard or to promulgate a standard in response to a petition. OSHA may also consult with one 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.7and 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 In addition to the APA and OSH Act, other federal laws that ~~generally~~general y apply to OSHA rulemaking 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 Act,13 Information Quality Act,14 and ~~Small~~ Smal Business Regulatory Enforcement Fairness Act 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)~~
~~and Office of Information and Regulatory Affairs (OIRA) for review before promulgation.16~~

~~7 The~~ 7 T he National Advisory Committee on Occupational Safety and Health (NACOSH) National Advisory Committee on Occupational Safety and Health (NACOSH) ~~was established~~ was established by Section 7(a) of by Section 7(a) of
the OSHthe OSH Act [29 U.S.C.Act [29 U.S.C. §656(a)]. §656(a)]. ~~The~~T he Advisory Committee on Construction Safety and Health (ACCSH) Advisory Committee on Construction Safety and Health (ACCSH) was was
establishedestablished by Section 107 of the Contract Work Hours and Safety Act (P.L. 87by Section 107 of the Contract Work Hours and Safety Act (P.L. 87 -581). Section 7(b) of the OSH Act -581). Section 7(b) of the OSH Act
provides OSHAprovides OSHA the authority to establish additional advisory committees. the authority to establish additional advisory committees.
8 8 ~~The~~T he Administrative Procedure Act (APA) is codified Administrative Procedure Act (APA) is codified at 5 U.S.C.at 5 U.S.C. §§500-596. For detailed information on federal §§500-596. For detailed information on federal
agency rulemaking and the APA, see CRSagency rulemaking and the APA, see CRS Report RL32240, Report RL32240, The Federal ~~Rulemaking~~Rulem aking Process: An Overview. .
9 29 U.S.C. 9 29 U.S.C. §655(b). §655(b).
10 29 U.S.C10 29 U.S.C §655(e). §655(e).
11 44 U.S.C.11 44 U.S.C. §§3501-3520. §§3501-3520.
12 5 U.S.C.12 5 U.S.C. §§601-612. §§601-612.
13 5 U.S.C.13 5 U.S.C. §§801-808. §§801-808.
14 44 U.S.C.14 44 U.S.C. §3516 note. §3516 note.
15 5 U.S.C.15 5 U.S.C. §601 note. For information on these additional laws that apply to OSHA rulemaking, see U.S.§601 note. For information on these additional laws that apply to OSHA rulemaking, see U.S. Government 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 Federal Register 51735, October 4, 1993.~~
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link to page link to page 68 OSHA: ETS and COVID-19 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 ~~OSHA: ETS and COVID-19~~

OSHA Rulemaking ~~Timeline~~Time Line
OSHA rulemaking for new standards OSHA rulemaking for new standards ~~has historically~~historical y has been a relatively time-consuming process. 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 OSHAsignificant OSHA standards promulgated between 1981 (after the enactments of the Paperwork standards promulgated between 1981 (after the enactments of the Paperwork
Reduction Act and Regulatory FlexibilityReduction Act and Regulatory Flexibility Act) and 2010.17 For these standards, OSHA’s average 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)months) to 63 months (5 years, 3 months). Table 1 provides OSHA’s estimated provides OSHA’s estimated ~~timelines~~time lines for six 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. 16 Executive Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, October 4, 1993. 17 GAO-12-330, Workplace Safety and Health. 18 OSHA, Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at https://www.osha.gov/OSHA_FlowChart.pdf. Congressional Research Service 3 OSHA: ETS and COVID-19
Table 1. OSHA Rulemaking Process: Estimated Durations of Activities
Stage
Activities
Estimated Duration
1 1
Preliminary Preliminary rulemaking activities 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 Publishing the Notice of Proposed Rulemaking (NPRM) (NPRM)
2-3 months 2-3 months
4 4
Developing and analyzing the rulemaking Developing and analyzing the rulemaking record,record, including public comments 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 Total estimated ~~duration~~
duration 52-138 months 52-138 months
Estimated duration from Estimated duration from NPRM to final rule NPRM to final rule
26-63 months 26-63 months
Source: CongressionalCongressional Research ServiceResearch Service (CRS) with data from Occupational Safety and Health Administration (CRS) with data from Occupational Safety and Health Administration
(OSHA), Directorate(OSHA), Directorate ~~of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at~~
~~https://www.osha.gov/OSHA_FlowChart.pdf.~~

~~17 GAO-12-330, Workplace Safety and Health.~~
~~18 OSHA, Directorate~~ of Standards and Guidance,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 60 days of its promulgation, a petition ~~challenging~~chal enging the standard with the U.S. Court of Appeals 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 judicialpetition for judicial review does not review does not ~~automatically~~automatical y stay the implementation or enforcement of the 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 judicialactivities, including judicial review, can take between 4 and 12 months after the standard is 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 immediatelyhearings. An ETS is immediately effective upon publication in the 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 validstandard with the ETS serving as the proposed standard for this rulemaking. An ETS is valid until 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. 19 29 U.S.C. §655(f). 20 OSHA, Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at https://www.osha.gov/OSHA_FlowChart.pdf. 21 29 U.S.C §655(c)(2). Congressional Research Service 4 OSHA: ETS and COVID-19 ~~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 agents determined to be toxic or ~~physically~~physical y harmful or from new hazards, and 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.22unclear as to how Congress intended the term grave danger to be defined.22

~~19 29 U.S.C. §655(f).~~
~~20 OSHA, Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at~~
~~https://www.osha.gov/OSHA_FlowChart.pdf.~~
~~21 29 U.S.C §655(c)(2).~~
~~22 U.S. Congress, Senate Labor and Public Welfare, Subcommittee on Labor,~~ ~~Legislative History of the Occupational~~
~~Safety and Health Act of 1970 (S. 2193, P.L. 91-596), committee print, prepared by Subcommittee on Labor, 91st~~
~~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~~ In addition, although the federal courts have ruled on chal enges to previous ETS promulgations, 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
invalidatedinvalidated OSHA’s November 1983 ETS lowering the permissible exposure limit for asbestos in 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 additionalthe additional reason that OSHA had not demonstrated the necessity of the ETS. The court cited, 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 The court determined that “fear of a successful judicial ~~challenge~~chal enge to enforcement of OSHA’s 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.”26OSHA’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
22 U.S. Congress, Senate Labor and Public Welfare, Subcommittee on Labor, Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, P.L. 91-596), committee print, prepared by Subcommittee on Labor, 91 st Cong., 1 sess., June 1971, 52-531 (Washington: GPO, 1971), p. 1218. 23 727 F.2d at 415, 425-427 (5th Cir. 1984). 24 727 F.2d at 427 (5th Cir. 1984). 25 727 F.2d at 427 (5th Cir. 1984). T he ET S mandated a permissible exposure limit (PEL) for asbestos of two asbestos fibers per cubic centimeter of air (2.0 f/cc). 26 727 F.2d at 427 (5th Cir. 1984). Congressional Research Service 5 link to page 26 OSHA: ETS and COVID-19 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~~ likely that the necessity requirement could be met.28that 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).~~
~~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~~
~~fibers per cubic centimeter of air (2.0 f/cc).~~
~~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~~
~~Health (NIOSH), NIOSH Alert: Preventing Lung Disease in Workers who Use or Make Flavorings, DHHS (NIOSH)~~
~~publication no. 2004–110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/.~~
~~28 GAO-12-330, Workplace Safety and Health.~~
~~Congressional Research Service~~
5

~~link to page 21~~ ~~OSHA: ETS and COVID-19~~

~~promulgating the ETS. As shown earlier in this report, six months is well~~ promulgating the ETS. As shown earlier in this report, six months is wel outside of historical and 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 comment provisions of the APA and OSH Act, as ~~well~~ wel as under other relevant federal laws and 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~~time lines that, based on historical precedent, other provisions in the OSH Act might that, based on historical precedent, other provisions in the OSH Act might ~~realistically~~realistical y
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 promulgated in 1983. As shown inin 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 an ETS, the courts have fully vacated or stayed the ETS in four cases and ~~partially~~partial y vacated the vacated the
ETS in one case.29 Of the five cases that were not ETS in one case.29 Of the five cases that were not ~~challenged~~chal enged or that were fully or or that were fully or ~~partially~~partial y upheld 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~~
~~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~~
~~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~~
~~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.~~
~~Such lengthy procedures could all too easily consume all of the temporary standard’s six months~~
~~life”33~~

27 See, for example, Centers for Disease Control and Prevention (CDC): Nation al Institute for Occupational Safety and Health (NIOSH), NIOSH Alert: Preventing Lung Disease in Workers who Use or Make Flavorings, DHHS (NIOSH) publication no. 2004–110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/. 28 GAO-12-330, Workplace Safety and Health. 29 Mark A. Rothstein, “Substantive and Procedural Obstacles29 Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHAto OSHA Rulemaking:Rulemaking: Reproductive HazardsReproductive Hazards as an as an
Example,” Example,” Boston College Environmental Affairs Law Review, vol. 12, no. 4 (August, vol. 12, no. 4 (August 1985), p. 673. 1985), p. 673.
30 For example, OSHA30 For example, OSHA promulgated the Acrylonitrile (vinyl cyanide) promulgated the Acrylonitrile (vinyl cyanide) ~~ETS~~ET S on January 17, 1978, and the permanent on January 17, 1978, and the permanent
standard on October 3, 1978, with an effective date of November 2, 1978. standard on October 3, 1978, with an effective date of November 2, 1978. ~~The~~T he preamble to the permanent standard preamble to the permanent standard
publishedpublished in the in the Federal Register doesdoes not include information on the status of the not include information on the status of the ~~ETS during~~ ET S during the time between its 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. Congressional Research Service 6 OSHA: ETS and COVID-19 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 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 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) procedures would not be in the best interest of employees, whom the Act is designed to protect. Such lengthy procedures could al too easily consume al of the temporary standard’s six months life”33~~45762, October 3, 1978.~~
~~31 489 F.2d. 120 (5th Cir. 1974).~~
~~32 489 F.2d. at 127 (5th Cir. 1974).~~
~~33 489 F.2d. at 127 (5th Cir. 1974).~~
~~Congressional Research Service~~
6

~~OSHA: ETS and COVID-19~~

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-other workers who may be exposed to SARS-~~Cov~~CoV-2, the virus that causes COVID-19.34-2, 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 likelyor are likely to cause death or serious physical harm” to workers.35 In addition, OSHA’s standards 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.36eye, 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 abilityairborne particles and their ability to protect against oil particles. Under the NIOSH classification 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
31 489 F.2d. 120 (5th Cir. 1974). 32 489 F.2d. at 127 (5th Cir. 1974). 33 489 F.2d. at 127 (5th Cir. 1974). 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. 35 29 U.S.C. §654(a)(1). 36 29 C.F.R. §§1910.133, 1910.134, and 1910.138. 37 29 C.F.R. §1910.134. 38 42 C.F.R. Part 84. Congressional Research Service 7 OSHA: ETS and COVID-19 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~~
~~transmitted by airborne droplets.~~
~~35 29 U.S.C. §654(a)(1).~~
~~36 29 C.F.R. §§1910.133, 1910.134, and 1910.138.~~
~~37 29 C.F.R. §1910.134.~~
~~38 42 C.F.R. Part 84.~~
~~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/~~
~~release-stockpiled-N95.html.~~
~~Congressional Research Service~~
7

~~OSHA: ETS and COVID-19~~

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 not affect the respirator’s protection afforded the user, it may ~~allow~~al ow unfiltered air from the user 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) AlexWorkforce Protections, sent a letter to Secretary of Health and Human Services (HHS) Alex M. M.
Azar II expressing their opposition to this change in the interim standard.43 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/release-stockpiled-N95.html. 40 Letter from RADM Denise M. Hinton, chief scientist, Food and Drug ~~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~~
~~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~~
~~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~~
~~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~~
~~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~~
~~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, Administration (FDA), to Robert R. Redfield,
Director, CDC, March 2, 2020, at https://www.fda.gov/media/135763/download. Director, CDC, March 2, 2020, at https://www.fda.gov/media/135763/download. ~~The~~T he list of respirators approved under list of respirators approved under
this Emergency Use Authorization (EUA) is in Appendix Bthis Emergency Use Authorization (EUA) is in Appendix B to this letter, updated at https://www.fda.gov/media/to this letter, updated at https://www.fda.gov/media/
135921/download. 135921/download.
41 Although the interim guidance does 41 Although the interim guidance does not specifically define the term 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 facemaskfacemask and a respirator such that any recommendation to use a facemask ~~does~~ does not require the usenot require the use of a respirator. of a respirator.
CDC,CDC, Interim Infection Prevention and Control ~~Recommendations~~Recom m endations for Patients with Suspected or ~~Confirmed~~Confirm ed
Coronavirus Disease 2019 (COVID-19) in Healthcare Settings, updated, updated March 10, 2020, at https://www.cdc.gov/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, updated July 2019, at https://www.cdc.gov/infectioncontrol/pdf/guidelines/isolation-guidelines-H.pdf. 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,Representative Alma S. Adams, chair, Subcommittee on Workforce Protections, to chair, Subcommittee on Workforce Protections, to ~~The~~T he Honorable Alex M. Azar II, Honorable Alex M. Azar II,
Secretary of Secretary of ~~Health and Human Services (HHS),~~ HHS, March 9, 2020, at https://edlabor.house.gov/imo/media/doc/March 9, 2020, at https://edlabor.house.gov/imo/media/doc/
Azar%20Redfield%20Letter_SIGNED%202020Azar%20Redfield%20Letter_SIGNED%202020 -03-09.pdf. Congressional Research Service 8 OSHA: ETS and COVID-19 Medical Evaluation and Fit Testing The OSHA respiratory protection standard requires that the employer provide a medical evaluation to the employee to determine if the employee is physiological y able to use a 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 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 when worn.44 Once an employee has been fit tested for a respirator, he or she is required to be fit tested annual y 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 seal of the respirator to his or her face in accordance with the procedures provided in Appendix B~~-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~~
~~face do not need to be fit tested.~~
~~Congressional Research Service~~
8

~~OSHA: ETS and COVID-19~~

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~~
~~ Republic of Korea.48~~
~~Cal/OSHA Aerosol Transmissible Disease Standard~~
~~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,~~
~~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,~~
~~homeless shelters, and drug treatment programs. Under the ATD standard, SARS-Cov-2, the virus~~

44 29 C.F.R. §1910.134 Appendix A. Powered air purifying respirators (PAPR) t hat do not require a seal to the user’s face do not need to be fit tested. 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-
enforcementenforcement -guidance-healthcare-respiratory-protection-annual-fit. -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~~Pandem ic, 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,respiratory-protection-and-n95-shortage-due-coronavirus. Under this guidance, employers are requiredemployers are required to addressto address in 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,~~ ~~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~~
~~https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under.~~
~~49 Cal. Code Regs. tit. 8, §5199.~~
~~Congressional Research Service~~
9

~~OSHA: ETS and COVID-19~~

Congressional Research Service 9 OSHA: ETS and COVID-19  People’s Republic of China, and  Republic of Korea.48 California: Cal/OSHA Aerosol Transmissible Disease Standard Although no OSHA standard specifical y covers aerosol or airborne disease transmission, the 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 most healthcare workers, laboratory workers, as wel as workers in correctional facilities, homeless shelters, and drug treatment programs. Under the ATD standard, SARS-CoV-2, the virus 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 precautions, such as seasonal influenza.50 The key requirements of the ATD standard include include
 written ATD exposure control plan and procedures,  written ATD exposure control plan and procedures,
 training of  training of ~~all~~ al employees on COVID-19 exposure, use of PPE, and procedures if 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 gowns or ~~coveralls~~coveral s, eye protection, and respirators certified by NIOSH at least at the N95 level , 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
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) Pandem ic, April 3, 2020, at https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under. 49 Cal. Code Regs. tit. 8, §5199. 50 Cal. Code Regs. tit. 8, §5199 Appendix A. 51 California Division of Occupational Safety and Health (Cal/OSHA), Interim Guidance for Protecting Health Care Congressional Research Service 10 OSHA: ETS and COVID-19 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.~~
~~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/~~
~~Coronavirus-info.html.~~
~~52 A PAPR uses a mechanical device to draw~~ Cal/OSHA Interim Guidance on COVID-19 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 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 may be used for high-hazard procedures that would otherwise require the use of PAPRs. Virginia: VOSH COVID-19 ETS On July 15, 2020, the Virginia Safety and Health Codes Board adopted an ETS to specifical y protect employees from exposure to SARS-CoV-2, the virus that causes COVID-19.55 This ETS, promulgated under Virginia’s state occupational safety and health plan (VOSH) is the first state standard to specifical y address COVID-19 in the workplace. As an ETS, the VOSH standard expires within six months of its effective date, upon expiration of the Governor’s State of Emergency, when superseded by a permanent standard, or when repealed by the Virginia Safety and Health Codes Board, whichever comes first. The ETS can be extended only through the normal state rulemaking process. Unlike the Cal/OSHA ATD standard, the VOSH ETS applies to al employers in the state. As part of a state plan, the VOSH ETS applies to state and local government entities, such as public schools, as employers. Al employers in Virginia must comply with the following ETS requirements:  exposure assessment and determination, notification of suspected cases and contacts with those cases, and employee access to their own exposure and medical records;  return to work of employees known or suspected to have COVID-19 based on a duration of time since last symptoms or negative COVID-19 tests;56 Workers from Exposure to Coronavirus Disease (COVID-19), March 2020, at https://www.dir.ca.gov/dosh/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 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. Code53 Cal. Code Regs.Regs. tit. 8, §5199(b). 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/coronavirus/Cal-OSHA-Guidance-for-respirator-shortages.pdf. 55 Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220. T his ET S is effective upon publication in a Richmond, VA, newspaper during the week of July 27, 2020. 56 A COVID-19 test for the purposes of determining if an employee can return to work must be paid for by the employer or offered such that the employee bears no cost for the test. ~~tit. 8, §5199(b).~~
Congressional Research Service Congressional Research Service
1011 OSHA: ETS and COVID-19  maintenance of physical distancing between employees while working and on paid breaks at the worksite, including restricted access to the worksite and common areas and break rooms;  compliance with applicable existing PPE and respiratory protection standards when physical distancing between employees is not possible; and  sanitation and disinfection requirements. For al employers, if engineering, administrative, or work practice controls are not feasible or do not provide sufficient protection from SARS-CoV-2 transmission, then PPE, including respiratory PPE—such as respirators, if necessary—must be provided to employees. VOSH ETS Hazard and Job Task Classification The VOSH ETS requires that each employer assess its workplace for hazards and job tasks that potential y expose employees to the SARS-CoV-2 virus. Employers must classify each job task as having a “very high,” “high,” “medium,” or “lower” risk level of exposure, according to the hazards to which employees are potential y exposed. The VOSH ETS provides the following examples of activities for the “very high” and “high” risk levels:  “very high” risk activities include  using aerosol-generating procedures, such as intubation, on patients known or suspected to be infected with SARS-CoV-2;  collecting or handling specimens from patients known or suspected to be infected with SARS-CoV-2; and  performing an autopsy involving aerosol-generating procedures on the body of a person known or suspected to be infected with the SARS-CoV-2 virus at the time of death; and  “high risk” activities include  health care services, including inpatient care, outpatient care, skil ed nursing care, and nonmedical support services such as room cleaning, provided to patients known or suspected to be infected with SARS-CoV-2;  first responder and medical transport services to patients known or suspected to be infected with SARS-CoV-2; and  mortuary services to persons known or suspected to be infected with the SARS-CoV-2 virus at the time of death. “Medium” risk activities are those that require employees to have more than minimal contact, within six feet of other employees, customers, or members of the public who are not known or suspected to be infected with SARS-CoV-2.57 “Lower” risk activities are those that do not require contact with other persons within six feet or that are able to utilize the following types of engineering, administrative, or work practice controls to minimize contact between persons:  instal ation of floor to ceiling barriers, such as barriers between cashiers and customers;  telecommuting;  staggered work shifts to reduce the number of workers at a site; 57 Examples of “medium” risk work activities are provided in the VOSH ET S at 16 Va. Admin. Code §25-220-30. Congressional Research Service 12 OSHA: ETS and COVID-19  delivering services remotely, including curbside pickup of retail purchases; and  mandatory physical distancing of persons. The use of face coverings other than respirators or medical or surgical masks, including cloth face coverings now required by several states, is not an acceptable method of minimizing physical contact between persons. However, the VOSH ETS requires the use of face coverings for brief contacts between persons within six feet of each other. Engineering, Administrative, Work Practice, and PPE Requirements for “Very High,” “High,” and “Medium” Risk Activities Employers with job tasks or activities in the “very high,” “high,” or “medium” risk classifications must adhere to specific engineering, administrative, work practice, and PPE requirements. For “very high” and “high” risk activities, engineering controls include the use of airborne infection isolation rooms (AIIR) for known or suspected COVID-19 patients and aerosol-generating procedures and Biosafety Level 3 (BSL-3) precautions for the handling of specimens from known or suspected COVID-19 patients.58 Employers with “very high” and “high” risk activities must implement administrative and work practice controls, including the prescreening of al employees to ensure that employees do not have signs or symptoms of COVID-19; enhanced medical screening of employees during COVID-19 outbreaks; and the use of flexible work arrangements, such as telecommuting, when feasible. In addition, al employers with “very high” or “high” risk activities must provide, to the extent feasible, psychological and behavioral support to address employee stress at no cost to the employee. The standard also provides for engineering, administrative, and work practice controls for “medium” risk activities.59 PPE Requirements for “Very High” and “High” Risk Activities Employers with “very high” and “high” risk activities, who are not already covered by the general OSHA PPE standards, are required to comply with the VOSH ETS requirements for PPE. An employer subject to these requirements must assess the workplace to determine if there are any COVID-19 hazards present or likely to be present that would require the use of PPE by employees. The employer must provide for the participation of employees and employee representatives in this assessment process and verify that this assessment has been conducted through a written certification. If hazards that require PPE are identified, the employer must select and provide the appropriate PPE to each employee and ensure that PPE fits properly. If respiratory PPE, such as respirators or PAPR are used as PPE, the existing OSHA standards for respiratory PPE, which include medical evaluation of employees and fit testing, must be followed. 58 T he VOSH ET S requires compliance with Biosafety Level 3 precautions provided in HHS, Biosafety in Microbiological and Biom edical Laboratories. Fifth Edition , HHS Publication no. (CDC) 21-1112, December 2009, at https://www.cdc.gov/labs/BMBL.html. 59 Engineering, administrative, and work practice controls for “medium” risk activities are provided in the VOSH ET S at 16 Va. Admin. Code §25-220-60. Congressional Research Service 13 OSHA: ETS and COVID-19 Unless contraindicated by the hazard and PPE assessment, when any employee is in contact within six feet of any person known or suspected to be infected with SARS-CoV-2, that employee must be provided with the following types of PPE:  gloves,  gown large enough to cover areas needing protection,  face shield or goggles, and  respirator. While there are no specific PPE requirements for “medium” risk activities, PPE may be required based on an assessment of the hazards of these activities. Infectious Disease Preparedness and Response Plan and Training Infectious Disease Preparedness and Response Plan Al employers with “very high” and “high” risk activities, and employers with 11 or more employees and “medium” risk activities, must develop written infectious disease preparedness and response plans. These plans must be developed with input from employees. The deadline for the development of these plans is 60 days from the effective date of the ETS. The infectious disease preparedness plan must include a consideration of the COVID-19 risks in the workplace, and to the extent possible and in compliance with medical privacy laws, the specific risks faced by employees with certain preexisting medical conditions. The plan must include contingency plans for continued operations during a COVID-19 outbreak and provide for the prompt identification and isolation of employees with known or suspected COVID-19 and a procedure for employees to notify the employer of COVID-19 signs or symptoms. The plan must also address interactions between the employer’s worksite and other businesses, such as vendors and contractors to ensure employees of these businesses comply with the VOSH ETS and the employer’s infectious disease preparedness and response plan. Training Al employers with “very high,” “high,” or “medium” risk activities must provide training to al employees, including those employees whose work does not involve any COVID-19 risks. This training must teach employees to recognize the hazards of the SARS-CoV-2 virus, signs and symptoms of COVID-19, and the procedures to minimize SARS-CoV-2 hazards. If the employer has an infectious disease preparedness and response plan, training must be provided on this plan. Written certification of training must be prepared, and retraining must be provided when necessary. Employers with only “lower” risk activities are not required to prepare a formal training plan but must provide oral or written communication on the hazards of SARS-CoV-2, the signs and symptoms of COVID-19, and measures to minimize SARS-CoV-2 exposure. VOSH is required to develop an information sheet that employers can use to satisfy this training requirement. Training must be provided within 30 days of the effective date of the standard, except for training on the infectious disease preparedness and response plan, which must be completed within 60 days. Congressional Research Service 14 OSHA: ETS and COVID-19 Whistleblower Protections The VOSH ETS prohibits any employer from discharging or otherwise discriminating against any employee who does the following:  exercises his or her rights under the ETS or existing whistleblower protection provisions, including the limited right of an employee to refuse work because of a reasonable fear of injury or death or serious injury;60  provides and wears his or her own PPE, provided the PPE does not create a greater hazard to the employee or create a serious hazard to other employees; or  raises a reasonable concern about SARS-CoV-2 and COVID-19 infection control to the employer, the employer’s agent, other employees, the government, or the public through any type of media including social media. OSHA Infectious Disease Standard Rulemaking

~~OSHA: ETS and COVID-19~~

~~Cal/OSHA Interim Guidance on COVID-19~~
~~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~~
~~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~~
~~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.comments on strategies to control exposure to infectious diseases in healthcare workplaces.5561
After After ~~collecting~~col ecting public comments and holding public meetings, OSHA completed the SBREFA 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 Protections, sent a letter to Secretary of Labor Eugene Scalia ~~calling~~cal ing on OSHA to promulgate an on OSHA to promulgate an
ETS to address COVID-19 exposure among healthcare workers.ETS to address COVID-19 exposure among healthcare workers.5662 This letter followed a January 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.begin to formulate for possible future promulgation an ETS to address COVID-19 exposure.57
63 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~~ cal ing for an OSHA ETS. for an OSHA ETS.58
~~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 The Atlantic
~~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 infectious diseases that would cover all workers~~

~~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/~~
~~coronavirus/Cal-OSHA-Guidance-for-respirator-shortages.pdf.~~
~~55 OSHA, “Infectious Diseases,” 75 Federal Register 24835, May 6, 2010.~~
5664 60 In order to exercise this right, the employee must, if possible, have sought unsuccessfully to have the employer remedy the hazard, and there must be insufficient time to attempt to remedy the hazard through normal r egulatory enforcement channels. T his right is provided in the OSHA standards at 29 C.F.R. §1977.12(b)(2) and in the VOSH standards at 16 Va. Admin. Code §25-60-110. 61 OSHA, “Infectious Diseases,” 75 Federal Register 24835, May 6, 2010. 62 Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams, Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams,
chair, Subcommittee on Worker Protections, to chair, Subcommittee on Worker Protections, to ~~The~~T he Honorable Eugene Scalia, Honorable Eugene Scalia, Secretary of Labor, March 5, 2020, at Secretary of Labor, March 5, 2020, at
https://edlabor.house.gov/imo/media/doc/2020-03-05%20OSHA%https://edlabor.house.gov/imo/media/doc/2020-03-05%20OSHA%~~20ETS~~20ET S%20Letter.pdf. %20Letter.pdf.
5763 Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams, Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams,
chair, Subcommittee on Worker Protections, to chair, Subcommittee on Worker Protections, to ~~The~~T he Honorable Eugene Scalia, Honorable Eugene Scalia, Secretary of Labor, January 30, 2020, at Secretary of Labor, January 30, 2020, at
https://edlabor.house.gov/imo/media/doc/2020-01-30%20RCS%20to%20DOL%20Corona%20Letter_SIGNED1.pdfhttps://edlabor.house.gov/imo/media/doc/2020-01-30%20RCS%20to%20DOL%20Corona%20Letter_SIGNED1.pdf . 64.
58 Letter from Senator Patty Murray, ranking member, Senate Committee on Health, Education, Labor, and Pensions, Letter from Senator Patty Murray, ranking member, Senate Committee on Health, Education, Labor, and Pensions,
Senator Robert Menendez, and Senator Senator Robert Menendez, and Senator ~~Tammy~~T ammy Baldwin, Baldwin, et al. to et al. to ~~The~~T he Honorable Eugene Honorable Eugene ~~Scalia, Secretary of Labor,~~
~~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,” The Atlantic,~~
~~March 2, 2020, at https://www.theatlantic.com/ideas/archive/2020/03/use-osha-help-stem-covid-19-pandemic/607312/.~~
~~Congressional Research Service~~
11

~~OSHA: ETS and COVID-19~~

~~with potential exposures.60 OSHA formally~~Scal ia, Secretary of Labor, Congressional Research Service 15 OSHA: ETS and COVID-19 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 The Atlantic cal ing on OSHA to promulgate a COVID-19 ETS.65 On March 6, 2020, the AFL-CIO and 22 other unions petitioned OSHA for an ETS on infectious diseases that would cover al workers with potential exposures.66 OSHA formal y denied the AFL-CIO petition on May 29, 2020, denied the AFL-CIO petition on May 29, 2020,
claiming that an ETS is not necessary to protect employees from infectious diseases claiming that an ETS is not necessary to protect employees from infectious diseases ~~generally~~general y, or , or
from COVID-19.from COVID-19.6167 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.6268 On May 4, 2020, the Center On May 4, 2020, the Center
for Food Safety and Food Chain Workers for Food Safety and Food Chain Workers ~~Alliance~~Al iance submitted a petition requesting that OSHA 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.6369 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.6470 The The
circuit court denied this petition on June 11, 2020. circuit court denied this petition on June 11, 2020.
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 Care Worker Protection Act of 2020. This ~~bill~~ bil would require OSHA to promulgate a COVID-19 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 requiring OSHA to include the elements of the Cal/OSHA ATD standard and VOSH COVID-19 ETS in this ETS. Title II of in this ETS. Title II of
~~the bill~~ the bil would provide that hospitals and would provide that hospitals and ~~skilled~~skil ed nursing facilities that receive Medicare funding nursing facilities that receive Medicare funding
and that are owned by state or local government units and not subject to and that are owned by state or local government units and not subject to state plans would be state plans would be
required to comply with the ETS. Similar provisions are included inrequired to comply with the ETS. Similar provisions are included in S. 3475. 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~~
~~the bill.65 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~~
~~was transmitted through the air, COVID-19 transmission is through droplets and surface contacts.~~

~~60 Letter from Richard L. Trumka, president, AFL-CIO, to The Honorable Eugene Scalia,~~ March 9, 2020, at https://www.baldwin.senate.gov/imo/media/doc/20200309%20OSHA%20ET S%20Letter.pdf. 65 David Michaels, “What T rump 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/. 66 Letter from Richard L. T rumka, president, AFL-CIO, to T he Honorable Eugene Scalia, Secretary of Labor, March 6, 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.
6167 Letter from Loren Sweatt, Principal Deputy Assistant Secretary of Labor, to Richard L. Letter from Loren Sweatt, Principal Deputy Assistant Secretary of Labor, to Richard L. ~~Trumka~~T rumka , President, AFL-, President, AFL-
CIO, May 29, 2020. CIO, May 29, 2020.
6268 Letter from Bonnie Castillo, executive director, National Nurses United, to Letter from Bonnie Castillo, executive director, National Nurses United, to ~~The~~T he Honorable Eugene Scalia, Honorable Eugene Scalia, Secretary Secretary
of Labor, and of Labor, and ~~The~~T he Honorable Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Honorable Loren Sweatt, Principal Deputy Assistant Secretary of Labor for ~~Occupational~~Occupationa l Safety and 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.
6369 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~~Adm inistration , 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.
6470 In re: American Federation of Labor and Congress of Industrial Organizations, D.C. Cir., No. 19 In re: American Federation of Labor and Congress of Industrial Organizations, D.C. Cir., No. 19 -1158, May 18, -1158, May 18,
2020. 2020. ~~This~~T his petition was filed petition was filed in the U.S.in the U.S. Court of Appeals as Section 6(f) of the OSHCourt of Appeals as Section 6(f) of the OSH Act [29 U.S.C.Act [29 U.S.C. §655(f)] grants §655(f)] grants
this court exclusive jurisdiction to provide judicialthis court exclusive jurisdiction to provide judicial review of OSHAreview of OSHA standards.standards.
~~65 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-
~~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.~~
~~Congressional Research Service~~
12

~~OSHA: ETS and COVID-19~~

Congressional Research Service 16 OSHA: ETS and COVID-19 (AHA) issued an alert to its members expressing its opposition to the OSHA ETS provisions in the bil .71 Specifical y, 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 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 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 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 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 COVID-19 patients, due to a lack of respirators for staff. The OSHA ETS provisions were not
included in the version of the legislationincluded in the version of the legislation that was passed by the House and the Senate and signed 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 COVIDthe COVID–-19 Workers First Protection Act of 2020, as introduced in the Senate. 19 Workers First Protection Act of 2020, as introduced in the Senate.
This legislation This legislation ~~would specifically~~ would specifical y provide that the ETS would remain in force until the 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
FlexibilityFlexibility Act, Paperwork Reduction Act, and Executive Order 12866. OSHA would be granted 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/OSHAto include the elements of the Cal/OSHA ATD standard ATD standard and VOSH COVID-19 ETS in this ETS and permanent 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 legislation. Rather, under H.R. 6379, the ETS and permanent standard would have to incorporate, 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 transmission of infectious agents in healthcare settings” and scientific research on novel 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~~ ETS at least as effective as the ETS, within 14 days of the legislation’s enactment. at least as effective as the ETS, within 14 days of the legislation’s enactment.
71 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-from-covid-19-because-there-arent-enough-masks/. T his alert is available to American Hospital Association (AHA) members on the AHA website at https://www.aha.org. Congressional Research Service 17 OSHA: ETS and COVID-19 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.
Similar provisions are included in S. 3677Similar provisions are included in S. 3677.
~~Congressional Research Service~~
13

~~OSHA: ETS and COVID-19~~
and were incorporated into H.R. 6800, the Heroes Act, as passed by the House.
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 injuries and ~~illnesses~~il nesses in accordance with OSHA regulations. in accordance with OSHA regulations.6672 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 of work-related injuries and ~~illnesses~~il nesses that result in lost work time for employees or that require that result in lost work time for employees or that require
medical care beyond first aid.medical care beyond first aid.6773 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 workplace fatality, and within 24 hours, any injury or ~~illness~~il ness that results in in-patient 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 exempt from the recordkeeping requirements but not the requirement to report to OSHA serious injuries, serious injuries,
~~illnesses~~il nesses, and deaths, and deaths ~~to OSHA.68~~.74 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 OSHA regulations require the employer to determine if an employee’s injury or ~~illness~~il ness is related 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.6975 The regulations provide a The regulations provide a
presumption that an injury or presumption that an injury or ~~illness~~il ness that occurs in the workplace is work-related and recordable, 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.7076 One of the listed exemptions is One of the listed exemptions is
as follows: The illness is the common cold or flu (Note: contagious diseases such as ~~as follows:~~
~~The illness is the common cold or flu (Note: contagious diseases such as~~ tuberculosis, 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).7177
Because of the nature of COVID-19 transmission, which can occur in the community as Because of the nature of COVID-19 transmission, which can occur in the community as ~~well~~ wel as 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. transmission. ~~This~~Absent any specific guidance, this may make it difficult for employers to determine may make it difficult for employers to determine if an employee’s COVID-19 if an employee’s COVID-19
~~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~~
~~treated under the recordkeeping requirements.72 This guidance stated that COVID-19 cases were~~
~~recordable if they were work-related.~~
~~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~~
~~work-related:~~
~~ healthcare;~~
~~ emergency response, including firefighting, emergency medical services, and law~~
~~enforcement; and~~

~~66 29 U.S.C. §§657(c) and 673(a).~~
~~67 OSHA’s~~ is subject to the recordkeeping requirements. 72 29 U.S.C. §§657(c) and 673(a). 73 OSHA’s reporting and recordkeeping regulations are at 29 C.F.R. Part 1904. reporting and recordkeeping regulations are at 29 C.F.R. Part 1904.
~~68 The~~74 T he list of exempted industries is at 29 C.F.R. list of exempted industries is at 29 C.F.R. ~~Subpart~~ Subpart B, Appendix A. States with state occupational safety and B, Appendix A. States with state occupational safety and
health plans may requirehealth plans may require employers in these exempted industries to comply with the recordkeeping requirements. employers in these exempted industries to comply with the recordkeeping requirements.
6975 29 C.F.R. §1904.5. 29 C.F.R. §1904.5.
7076 29 C.F.R. §1905.5(a). 29 C.F.R. §1905.5(a).
7177 29 C.F.R. §1904.5(b)(2)(viii). 29 C.F.R. §1904.5(b)(2)(viii).
~~72 OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), April 10, 2020, at~~
~~https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.~~
~~Congressional Research Service~~
14

~~OSHA: ETS and COVID-19~~

~~ correctional institutions.~~
~~For all~~ Congressional Research Service 18 OSHA: ETS and COVID-19 Initial OSHA Recordkeeping Guidance On April 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be treated under the recordkeeping requirements.78 This guidance stated that COVID-19 cases were recordable if they were work-related. 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 work-related:  healthcare;  emergency response, including firefighting, emergency medical services, and law enforcement; and  correctional institutions. For al other employers, OSHA required employers to determine if COVID-19 cases were work-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 information given to the employer by employees, as ~~well~~ wel as information that an 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.7379
This new guidance rescinds the previous guidance issued by OSHA on AprilThis new guidance rescinds the previous guidance issued by OSHA on April 10, 2020. Under this 10, 2020. Under this
new guidance, new guidance, ~~all~~ al employers, regardless of type of industry or employment, are subject to the 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~~ OSHA says it says it ~~will~~ wil consider the following factors: 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  the evidence that is available to the employer; and 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~~
78 OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), April 10, 2020, at https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19. 79 OSHA, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), May 19, 2020, at https://www.osha.gov/memos/2020-05-19/revised-enforcement -guidance-recording-cases-coronavirus-disease-2019-covid-19. Congressional Research Service 19 OSHA: ETS and 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
legislationlegislation include the requirement for the recording and reporting of include the requirement for the recording and reporting of ~~all~~ al COVID-19 cases in 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 determine the work-relatedness of COVID-19 cases to ~~all~~ al employers covered by the employers covered by the
recordkeeping regulations. ~~recordkeeping regulations.~~

~~73 OSHA, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), May 19,~~
~~2020, at https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-~~
~~disease-2019-covid-19.~~
~~Congressional Research Service~~
15

~~OSHA: ETS and COVID-19~~

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.7480 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.7581
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 availablematerial safety data sheets or other information required to be made available by the employer; by the employer;
and the right to report a work-related injury, and the right to report a work-related injury, ~~illness~~il ness, or death to OSHA., or death to OSHA.7682 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 eliminateor death and there is not sufficient time to eliminate the danger through other means.the danger through other means.77
83 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~~ legislation expand the protections for whistleblowers. The following additional activities taken by 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;~~
~~ seeking assistance from the employer or a local, state, or federal agency with~~
~~such a report; and~~
~~ using personally supplied PPE with a higher level of protection than offered by~~
~~the employer.~~

~~74 29 U.S.C. §660(c). OSHA~~ 80 29 U.S.C. §660(c). OSHA also enforces whistlebloweralso enforces whistleblower provisions in 22 other federal statutes. Information on statutes provisions in 22 other federal statutes. Information on statutes
with whistleblowerwith whistleblower provisions enforced by OSHAprovisions enforced by OSHA is at OSHA,is at OSHA, Whistleblower Statutes ~~Summary~~Sum m ary Chart, October 17, , October 17,
2009, 2009, at https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Charthttps://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart -10.8-Final.pdf. -10.8-Final.pdf.
7581 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 whistleblowerby the whistleblower provision, but may be covered by whistleblowerprovision, but may be covered by whistleblower provisions in other federal and state statutes. provisions in other federal and state statutes.
7682 For additional information on other rights covered by the whistleblower For additional information on other rights covered by the whistleblower protection provision, see OSHA, January 9, 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.
7783 29 C.F.R. §1977.12(b)(2). 29 C.F.R. §1977.12(b)(2).
Congressional Research Service Congressional Research Service
1620 OSHA: ETS and COVID-19  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 such a report; and  using personal y supplied PPE with a higher level of protection than offered by the employer.

~~OSHA: ETS and COVID-19~~

H.R. 6800, 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, The Heroes Act. whistleblower protections, were included as Title III of Division L of H.R. 6800, The Heroes Act.
H.R. 6800 was passed by the House on May 15, 2020. In a letter to Speaker of the House Nancy H.R. 6800 was passed by the House on May 15, 2020. In a letter to Speaker of the House Nancy
Pelosi, the AHAPelosi, the AHA expressed its opposition to the ETS provisions in The Heroes Act citing the 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, potential for confusion that new regulations could bring and the “ongoing global lack of supplies,
equipment and testing capability” faced by hospitals.equipment and testing capability” faced by hospitals.7884 The AHA also stated that the provision The AHA also stated that the provision
that would require the ETS to be based on state standards “suggests that the federal government is 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 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 without consideration of whether that state’s decisions are appropriate for implementation
anywhere and everywhere.” anywhere and everywhere.”

~~78 Letter from Thomas~~ 84 Letter from T homas P. Nickels, Executive Vice President, American Hospital Association, to Hon. Nancy Pelosi, P. Nickels, Executive Vice President, American Hospital Association, to Hon. Nancy Pelosi,
Speaker, U.S.Speaker, U.S. House of Representatives, May 14, 2020, House of Representatives, May 14, 2020, at https://www.aha.org/system/files/media/file/2020/05/web-https://www.aha.org/system/files/media/file/2020/05/web-
AHALettertoHouseonHEROESAct051420final.pdf. AHALettertoHouseonHEROESAct051420final.pdf.
Congressional Research Service Congressional Research Service
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OSHA: ETS and COVID-19

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 Not ~~challenged~~chal enged
— —
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 Not ~~challenged~~chal enged
— —
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.(D.C. Cir. 1977) 1977)
1977 1977
1,2 Dibromo-3- 1,2 Dibromo-3-
42 42 Federal Register
Not Not ~~challenged~~chal enged
— —
chloropropane (DBCP) 45535 (September 9, chloropropane (DBCP) 45535 (September 9,
1977) 1977)
1978 1978
Acrylonitrile Acrylonitrile (vinyl (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 fromCRS with data from Mark A. Rothstein,Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA“Substantive and Procedural Obstacles to OSHA Rulemaking: Rulemaking:
Reproductive Hazards as an Example,” Reproductive Hazards as an Example,” Boston ~~College~~Col ege 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

Congressional Research Service Congressional Research Service
1822

OSHA: ETS and COVID-19

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R46288 R46288 · VERSION 1112 · UPDATED
1923