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 October 20, 2020 to December 3, 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 ~~October 20~~December 3, 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 standard that protects ~~healthcare~~health care or other workers from airborne or aerosol transmission of 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 representing ~~healthcare~~health care, meat and poultry processing, and other workers, are calling on OSHA to promulgate an emergency , meat and poultry processing, and other workers, are calling on OSHA to promulgate an emergency
temporary standard (ETS) to protect workers from exposure to SARS-CoV-2, the virus that causes Coronavirus Disease 2019 temporary standard (ETS) to protect workers from exposure to SARS-CoV-2, the virus that causes Coronavirus Disease 2019
(COVID-19).(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. In addition, according to the when these workers interact with ATDs, such as known or suspected COVID-19 cases. In addition, according to the
Cal/OSHA ATD standard, certain procedures require the use of powered air purifying respirators (PAPR).Cal/OSHA ATD standard, certain procedures require the use of powered air purifying respirators (PAPR).
Cal/OSHA has also promulgated an ETS to specifically address COVID-19 exposure in the workplace that requires all employers to develop and implement written COVID-19 prevention programs that include mandatory elements such as the provision of face coverings to employees, physical distancing of employees, and the exclusion of COVID-19 cases and exposed employees from the workplace. The Virginia state occupational safety and health plan (VOSH) and the Michigan state occupational safety and health plan The Virginia state occupational safety and health plan (VOSH) and the Michigan state occupational safety and health plan
(MIOSHA) have each promulgated emergency standards to specifically address COVID-19 in workplaces. Unlike the (MIOSHA) have each promulgated emergency standards to specifically address COVID-19 in workplaces. Unlike the
Cal/OSHA ATD standard, these emergency standards are in effect for only six months and apply to all employers.Cal/OSHA ATD standard, these emergency standards are in effect for only six months and apply to all employers.
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 (CDC’s) 2007 guidelines on occupational exposure to infectious agents in ~~healthcare~~health care settings; similar provisions appear in S. settings; similar provisions appear 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. The OSHA ETS provisions were not included in the House- and Senate-passed version of introduced in the House. The OSHA ETS provisions were not included in the House- and Senate-passed version of
legislation that was signed into law as P.L. 116-127.legislation that was signed into law as P.L. 116-127.
H.R. 6379, as introduced in the House, H.R. 6379, as introduced in the House, ~~also~~ would would also include a requirement for an OSHA ETS and permanent standard to include a requirement for an OSHA ETS and permanent standard to
address COVID-19 exposure; similar provisions appear in S. 3584. H.R. 6559 would include the requirements for an ETS address COVID-19 exposure; similar provisions appear in S. 3584. H.R. 6559 would include the requirements for an ETS
and permanent standard, clarify the requirement that employers must report work-related COVID-19 cases, and expand and permanent standard, clarify the requirement that employers must report work-related COVID-19 cases, and expand
protections for whistleblowers; similar provisions appear in S. 3677. The provisions of H.R. 6559protections for whistleblowers; similar provisions appear in S. 3677. The provisions of H.R. 6559 were included in H.R. were included in H.R.
6800, The Heroes Act, passed by the House on May 15, 2020, and in the House Amendment to the Senate Amendment to 6800, The Heroes Act, passed by the House on May 15, 2020, and in the House Amendment to the Senate Amendment to
H.R. 925, the revised Heroes Act passed by the House on October 1, 2020. H.R. 925, the revised Heroes Act passed by the House on October 1, 2020.
Through Through ~~October 1~~November 12, 2020, OSHA has issued , 2020, OSHA has issued 232 COVID-19-related citations COVID-19-related citations ~~to employers at 62 work sites,~~ with total proposed with total proposed
penalties of $penalties of $~~913,133.~~ 3,148,452. These citations have been issued for violations of the OSH Act’s General Duty Clause and other These citations have been issued for violations of the OSH Act’s General Duty Clause and other
existing OSHA standards, such as those for respiratory protection, that may apply to COVID-19. Senators Elizabeth Warren existing OSHA standards, such as those for respiratory protection, that may apply to COVID-19. Senators Elizabeth Warren
and Cory A. Booker have raised concerns about the low amount of penalties being assessed for COVID-19-related violations.and Cory A. Booker have raised concerns about the low amount of penalties being assessed for COVID-19-related violations.

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OSHA: ETS and COVID-19

Occupational Safety and Health Administration
Standards
Section 6 of the Occupational Safety and Health Act of 1970 (OSH Act) grants the Occupational Section 6 of the Occupational Safety and Health Act of 1970 (OSH Act) grants the Occupational
Safety and Health Administration (OSHA) of the Department of Labor (DOL) the authority to Safety and Health Administration (OSHA) of the Department of Labor (DOL) the authority to
promulgate, modify, or revoke occupational safety and health standards that apply to private promulgate, modify, or revoke occupational safety and health standards that apply to private
sector employers, the United States Postal Service, and the federal government as an employer.1 sector employers, the United States Postal Service, and the federal government as an employer.1
In addition, Section 5(a)(1) of the OSH Act, commonly referred to as the General Duty Clause, In addition, Section 5(a)(1) of the OSH Act, commonly referred to as the General Duty Clause,
requires that 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 state plan, it ~~also must~~must also cover state and local government entities, such as public schools, not cover state and local government entities, such as public schools, not
covered by OSHA. Currently, 21 states and Puerto Rico have state plans that cover covered by OSHA. Currently, 21 states and Puerto Rico have state plans that cover ~~all~~ al employers, employers,
and 5 states and the U.S. Virgin Islands have state plans that cover only state and local and 5 states and the U.S. Virgin Islands have state plans that cover only state and local
government employers not covered by the OSH Act.5 In the remaining states, state and local government employers not covered by the OSH Act.5 In the remaining states, state and local
government employers are not covered by OSHA standards or enforcement. State plans may government employers are not covered by OSHA standards or enforcement. State plans may
incorporate OSHA standards by reference, or states may adopt their own standards that are at incorporate OSHA standards by reference, or states may adopt their own standards that are at
least as effective as OSHA’s standards. State plans do not have jurisdiction over federal agencies least as effective as OSHA’s standards. State plans do not have jurisdiction over federal agencies
and and ~~generally~~general y do not cover maritime workers and private-sector workers at military bases or other do not cover maritime workers and private-sector workers at military bases or other
federal facilities. federal facilities.
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

~~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 [29 §655(b)(1)], a petition may be submitted by “Act [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
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standard or to promulgate a standard in response to a petition. OSHA may also consult with one standard or to promulgate a standard in response to a petition. OSHA may also consult with one
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

organization, the Secretary of Health and Human Servicesorganization, the Secretary of Health and Human Services (HHS), the National Institute for Occupational Safety and (HHS), the National Institute for Occupational Safety and
Health, or a state or political subdivision.” Health, or a state or political subdivision.”
7 7 ~~The~~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 Advisory Committee~~T he Advisory Co mmittee on Construction Safety and Health (ACCSH) 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~~Accountabilit y Office (GAO), 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). ).
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agencies to submit certain regulatory actions to the Office of Management and Budget (OMB) agencies to submit certain regulatory actions to the Office of Management and Budget (OMB)
and Office of Information and Regulatory Affairs (OIRA) for reviewand Office of Information and Regulatory Affairs (OIRA) for review before promulgation.16 before promulgation.16
OSHA Rulemaking Time Line
OSHA rulemaking for new standards OSHA rulemaking for new standards ~~historically has~~has historical y been a relatively been a relatively time-consuming process. 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 Advance Notice of Proposed Rulemaking in the Request for Information or Advance 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 time lines for six provides OSHA’s estimated time lines for six
major pre-rulemaking and rulemaking activities leading to the promulgation of a standard. major pre-rulemaking and rulemaking activities leading to the promulgation of a standard.
Table 1. OSHA Rulemaking Process: Estimated Durations of Activities
Stage
Activities
Estimated Duration
1 1
Preliminary 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,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.

16 Executive Order 12866, “Regulatory Planning and Review,” 5816 Executive Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, October 4, 1993. 51735, October 4, 1993.
17 GAO-12-330, 17 GAO-12-330, Workplace Safety and Health. .
18 OSHA,18 OSHA, Directorate of Standards and Guidance,Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at , October 15, 2012, at
https://www.osha.gov/OSHA_FlowChart.pdf.https://www.osha.gov/OSHA_FlowChart.pdf.
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Judicial Review
Both the APA and the OSH Act provide for judicial review of OSHA standards. Section 7(f) of Both the APA and the OSH Act provide for judicial review of OSHA standards. Section 7(f) of
the OSH Act provides that any person who is “adversely affected” by a standard may file, within the OSH Act provides that any person who is “adversely affected” by a standard may file, within
60 days of its promulgation, a petition 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. 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.~~ 19 29 U.S.C. §655(f). §655(f).
20 OSHA,20 OSHA, Directorate of Standards and Guidance,Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at , October 15, 2012, at
https://www.osha.gov/OSHA_FlowChart.pdf.https://www.osha.gov/OSHA_FlowChart.pdf.
21 29 U.S.C 21 29 U.S.C §655(c)(2). §655(c)(2).
22 U.S.22 U.S. Congress, Senate Labor and Public Welfare, Subcommittee on Labor, Congress, Senate Labor and Public Welfare, Subcommittee on Labor, Legislative History of the Occupational
Safety and Health Act of 1970 (S. 2193S. 2193, P.L. 91-596), committee print, prepared by Subcommittee on Labor, , committee print, prepared by Subcommittee on Labor, ~~91st~~91 st
Cong., 1 sess.,Cong., 1 sess., June 1971, 52-531 (Washington: GPO, 1971), p. 1218. June 1971, 52-531 (Washington: GPO, 1971), p. 1218.
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In addition, although the federal courts have ruled on In addition, although the federal courts have ruled on ~~challenges~~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
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). 23 727 F.2d at 415, 425-427 (5th Cir. 1984).
24 727 F.2d at 427 (5th Cir. 1984). 24 727 F.2d at 427 (5th Cir. 1984).
25 727 F.2d at 427 (5th Cir. 1984). 25 727 F.2d at 427 (5th Cir. 1984). ~~The ETS~~T he ET S mandated a permissible exposure limit (PEL) for asbestos of two asbestos mandated a permissible exposure limit (PEL) for asbestos of two asbestos
fibers per cubicfibers per cubic centimeter of air (2.0 f/cc). centimeter of air (2.0 f/cc).
26 727 F.2d at 427 (5th Cir. 1984). 26 727 F.2d at 427 (5th Cir. 1984).
27 See,27 See, for example, Centers for Disease Control and Prevention (CDC): National Institute for Occupational Safety and for example, Centers for Disease Control and Prevention (CDC): National Institute for Occupational Safety and
Health (NIOSH), Health (NIOSH), NIOSH Alert: Preventing Lung Disease in Workers who Use or Make Flavorings, DHHS, DHHS (NIOSH) (NIOSH)
publication no. 2004–110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/. publication no. 2004–110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/.
28 GAO-12-330, 28 GAO-12-330, Workplace Safety and Health. .
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link to page link to page 3034 link to page 34 OSHA: ETS and COVID-19

promulgating the ETS. As shown earlier in this report, six months is promulgating the ETS. As shown earlier in this report, six months is ~~well~~ 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
time lines that, based on historical precedent, other provisions in the OSH Act might time lines 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 OSHA has used its ETS authority sparingly in its history and not since the asbestos ETS 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 in ~~the Appendix,~~the Appendix, of the nine times OSHA has issued 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 going through the normal rulemaking process.31 The court stated that “it is inconceivable that
Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency
situations, intended to limit his abilitysituations, intended to limit his ability to react to developments subsequent to his initial to react to developments subsequent to his initial
response.”32 The court also recognized the difficulty OSHA may have in promulgating a standard response.”32 The court also recognized the difficulty OSHA may have in promulgating a standard
within six months due to the notice and comment requirements of the OSH Act, stating that in the within six months due to the notice and comment requirements of the OSH Act, stating that in the
case of OSHA seeking to amend an ETS to expand its focus, “adherence to subsection (b) case of OSHA seeking to amend an ETS to expand its focus, “adherence to subsection (b)
procedures would not be in the best interest of employees, whom the Act is designed to protect. procedures would not be in the best interest of employees, whom the Act is designed to protect.
Such lengthy procedures could Such lengthy procedures could ~~all~~ al too easily consume too easily consume ~~all~~ al of the temporary standard’s six months of the temporary standard’s six months
~~life”33~~

life.”33 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. 45762, October 3, 1978.
31 489 F.2d. 120 (5th Cir. 1974). 31 489 F.2d. 120 (5th Cir. 1974).
32 489 F.2d. at 127 (5th Cir. 1974). 32 489 F.2d. at 127 (5th Cir. 1974).
33 489 F.2d. at 127 (5th Cir. 1974). 33 489 F.2d. at 127 (5th Cir. 1974).
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OSHA: 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 workplace. As a result, OSHA is limited in its ability to enforce protections for ~~healthcare and~~
health care and other workers who may be exposed to SARS-CoV-2, the virus that causes COVID-19.34other workers who may be exposed to SARS-CoV-2, the virus that causes COVID-19.34
OSHA may enforce the General Duty Clause in the absence of a standard, if it can be determined OSHA may enforce the General Duty Clause in the absence of a standard, if it can be determined
that an employer has failed to provide a worksite free of “recognized hazards” that are “causing that an employer has failed to provide a worksite free of “recognized hazards” that are “causing
or are 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
As of As of ~~October 1~~November 12, 2020, OSHA has issued , 2020, OSHA has issued 232 citations related to COVID-19 citations related to COVID-19 ~~to employers at 62 work~~
~~sites~~ resulting in a total of $resulting in a total of $~~913,133~~3,148,952 in proposed civil penalties.37 The majority of these citations in proposed civil penalties.37 The majority of these citations
were issued to were issued to ~~healthcare~~health care, nursing, and long-term care providers, including two Department of , nursing, and long-term care providers, including two Department of
Veterans Affairs facilities—a hospital in Indianapolis, Veterans Affairs facilities—a hospital in Indianapolis, ~~Indiana~~IN, and a community living center in , and a community living center in
Queens, Queens, ~~New York.38~~NY.38 Citations were issued for violations of OSHA’s respiratory protection, injury and il ness reporting, and recordkeeping standards. Two employers in the meat processing industry— Two employers in the meat processing industry— Smithfield Packaged Smithfield Packaged
~~Foods, Inc. in Sioux Falls, South Dakota~~Foods in Sioux Fal s, SD, and JBS Foods and JBS Foods~~, Inc.~~ locations in Greeley, CO, and Green Bay, WI—were cited ~~in Greeley, Colorado—were also~~
~~cited.39 In the two meat processing cases, citations were issued~~ for General Duty Clause for General Duty Clause
~~violations. Other citations were issued for violations of OSHA’s respiratory protection, injury and~~
~~illness reporting, and recordkeeping standards.~~
~~The highest amount of proposed penalties issued to a single employer for COVID-19-related~~
~~violations was $28,070 to the Harborage nursing home operated by Hackensack Meridian~~
~~Healthcare in New Jersey for four serious and one other than~~violations. These were the only General Duty Clause citations issued by OSHA for activities related to COVID-19. In a letter to OSHA, Senators Elizabeth Warren and Cory A. Booker raised concerns over the amount of penalties issued to Smithfield Packaged Foods and the Greeley, Colorado location of JBS Foods.39 The Senators asked OSHA why these employers were each cited for single serious serious violations of the General Duty Clause rather than multiple violations for each area of the facilities in which social distancing measures were not implemented. They also asked why OSHA did not issue penalties for wil ful or repeated violations that carry maximum penalties of $134,937 per violation rather than the maximum penalty of $13,494 for serious or other than serious violations.40 None of the employers cited for COVID-19-related violations were issued penalties for wil ful or repeated violations. 34 OSHA ~~violations of the respiratory~~
~~protection standard.40 For two of the serious violations, OSHA issued the maximum allowable~~
~~penalty of $13,494.41 For the other two serious violations, OSHA issued citations but no monetary~~
~~penalties. For the other than serious violation, OSHA issued a penalty of $1,082. The two meat~~
~~processing employers were each assessed maximum penalties of $13,494 for serious violations of~~
~~the General Duty Clause.~~
~~In a letter to OSHA, Senators Elizabeth Warren and Cory A. Booker raised concerns over the~~
~~amount of penalties issued to these employers.42 The Senators asked OSHA why these employers~~

~~34 OSHA~~ has a standard on blood-borne pathogens (29 C.F.R. §1910.1030) but does not have a standard on pathogens has a standard on blood-borne pathogens (29 C.F.R. §1910.1030) but does not have a standard on pathogens
transmitted by airborne droplets. transmitted by airborne droplets.
35 29 U.S.C. 35 29 U.S.C. §654(a)(1). §654(a)(1).
36 29 C.F.R. §§1910.133, 1910.134, and 1910.138. 36 29 C.F.R. §§1910.133, 1910.134, and 1910.138.
37 OSHA,37 OSHA, U.S. Department of Labor’s OSHA Announces $~~913,133 in~~3,148,452 In Coronavirus Violations, OSHA, OSHA National News National News
Release,Release, ~~October 9~~ November 20, 2020, https://www.osha.gov/news/newsreleases/national/, 2020, https://www.osha.gov/news/newsreleases/national/~~10092020~~11202020. In some cases, multiple citations were issued to the same employer. .
38 A list of all COVID-19-related citations issued 38 A list of all COVID-19-related citations issued ~~by OSHA through October 1, 2020,~~ by OSHA is available at is available at
https://www.osha.gov/enforcement/covid-19-data/inspections-covid-related-citations. https://www.osha.gov/enforcement/covid-19-data/inspections-covid-related-citations.
39 OSHA has the authority to issue citations to OSHA has the authority to issue citations to ~~Executive Branch~~executive branch agencies agencies, but does not have the authority to issue civil but does not have the authority to issue civil
monetary penalties to these agencies.monetary penalties to these agencies.
~~40 Detailed information on the citations issued to this employer is available at https://www.osha.gov/pls/imis/~~
~~establishment.inspection_detail?id=1476465.015.~~
~~41 OSHA citations are classified as “serious,” “other than serious,” “willful,” or “repeated.” The maximum amounts of~~
~~OSHA penalties are subject to annual inflationary adjustments.~~
~~42 Letter from Senators Elizabeth Warren and Cory A. Booker to Loren Sweatt, Principal Deputy Assistant Secretary of~~
~~Congressional Research Service~~
7

~~OSHA: ETS and COVID-19~~

~~were each cited for single serious violations of the General Duty Clause rather than multiple~~
~~violations for each area of the facilities in which social distancing measures were not~~
~~implemented. They also asked why OSHA did not issue penalties for willful or repeated~~
~~violations that carry maximum penalties of $134,937 per violation. None of the employers cited~~
~~for COVID-19-related violations were issued penalties for willful or repeated violations.~~ 39 Letter from Senators Elizabeth Warren and Cory A. Booker to Loren Sweatt, Principal Deputy Assistant Secretary of Labor, Occupational Safety and Health Administration, September 22, 2020, https://www.warren.senate.gov/imo/media/doc/Letter%20from%20Senators%20Warren,%20Booker%20to%20OSHA%209 -22-20.pdf. 40 OSHA citations are classified as “serious,” “other than serious,” “willful,” or “rep eated.” T he maximum amounts of OSHA penalties are subject to annual inflationary adjustments. Congressional Research Service 7 OSHA: ETS and COVID-19
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.to protect workers from breathing contaminated air.4341 Surgical masks, procedure masks, and dust 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.regulations.4442 For nonpowered respirators, such as filtering face piece respirators commonly used For nonpowered respirators, such as filtering face piece respirators commonly used
in in ~~healthcare~~health care and construction, NIOSH classifies respirators based on their efficiency at filtering 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
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.shelf lives.4543
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
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.by FDA.46

~~Labor, Occupational Safety and Health Administration, September 22, 2020, https://www.warren.senate.gov/imo/~~
~~media/doc/Letter%20from%20Senators%20Warren,%20Booker%20to%20OSHA%209-22-20.pdf.~~
~~43 29 C.F.R. §1910.134.~~
~~44 42 C.F.R. Part 84.~~
~~45 NIOSH,~~ 44 CDC Interim Guidance on Respiratory Protection On March 10, 2020, the Centers for Disease Control and Prevention (CDC) updated its interim guidance for the protection of health care workers against exposure to COVID-19 to permit health care workers caring for known or suspected COVID-19 cases to use “facemasks” when respirators are not available or are in limited supply.45 This differs from the CDC’s 2007 41 29 C.F.R. §1910.134. 42 42 C.F.R. Part 84. 43 NIOSH, Release of Stockpiled Filtering Facepiece Respirators Beyond the Manufacturer-Designated Shelf Life:
Considerations for the COVID-19 Response, February, February 28, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/28, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/
release-stockpiled-N95.html. release-stockpiled-N95.html.
4644 Letter from RADM Denise M. Hinton, chief scientist, Food and Drug 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.
~~Congressional Research Service~~
8

~~OSHA: ETS and COVID-19~~

~~CDC Interim Guidance on Respiratory Protection~~
~~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~~
~~healthcare workers caring for known or suspected COVID-19 cases to use “facemasks” when~~
~~respirators are not available or are in limited supply.47 This differs from the CDC’s 2007~~
~~guidelines for control of infectious agents in healthcare~~45 Although the interim guidance does not specifically define the term facemask, it does differentiate between a facemask and a respirator such that any recommendation to use a facemask does not require the use of a respirator. CDC, Interim Infection Prevention and Control Recom m endations for Patients with Suspected or Confirm ed Congressional Research Service 8 OSHA: ETS and COVID-19 guidelines for control of infectious agents in health care settings, which required the use of settings, which required the use of
respirators for treatment of known or suspected cases.respirators for treatment of known or suspected cases.4846 CDC states that respirators should be 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.Azar II expressing their opposition to this change in the interim standard.49
47 Medical Evaluation and Fit Testing
The OSHA respiratory protection standard requires that the employer provide a medical The OSHA respiratory protection standard requires that the employer provide a medical
evaluationevaluation to the employee to determine if the employee is to the employee to determine if the employee is ~~physiologically~~physiological y able to use a able to use a
respirator. This medical evaluation must be completed before any fit testing. For respirators respirator. This medical evaluation must be completed before any fit testing. For respirators
designed to fit tightly against the face, the specific type and model of respirator that an employee designed to fit tightly against the face, the specific type and model of respirator that an employee
is to use must be fit tested in accordance with the procedures provided in Appendix A of the is to use must be fit tested in accordance with the procedures provided in Appendix A of the
OSHA respiratory protection standard to ensure there is a complete seal around the respirator OSHA respiratory protection standard to ensure there is a complete seal around the respirator
when worn.when worn.5048 Once an employee has been fit tested for a respirator, he or she is required to be fit Once an employee has been fit tested for a respirator, he or she is required to be fit
tested tested ~~annually~~annual y or whenever the model of respirator, but not the actual respirator itself, is or whenever the model of respirator, but not the actual respirator itself, is
changed. Each time an individualchanged. Each time an individual uses a respirator, he or she is required to perform a check of the uses a respirator, he or she is required to perform a check of the
seal of the respirator to his or her face in accordance with the procedures provided in Appendix B seal of the respirator to his or her face in accordance with the procedures provided in Appendix B
of the standard.of the standard.5149 On March 14, 2020, OSHA issued guidance permitting employers to suspend 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. 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-19 pandemic, OSHA has issued three sets of temporary enforcement guidance to permit the following exceptions to the respiratory protection standard: 1. Employers may suspend annual fit testing of respirators for employees that have already been fit tested on the same model respirator;50 Coronavirus Disease 2019 (COVID-19) in Health care Settings, updated ~~respirator.~~

~~47 Although the interim guidance does not specifically define the term facemask, it does differentiate between a~~
~~facemask and a respirator such that any recommendation to use a facemask does not require the use of a respirator.~~
~~CDC,~~ ~~Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed~~
~~Coronavirus Disease 2019 (COVID-19) in Healthcare Settings, updated~~ March 10, 2020, at https://www.cdc.gov/March 10, 2020, at https://www.cdc.gov/
coronavirus/2019-ncov/infection-control/control-recommendations.html. coronavirus/2019-ncov/infection-control/control-recommendations.html.
4846 CDC, CDC, 2007 Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in ~~Healthcare~~Health care
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.
4947 Letter from Representative Robert C. “Bobby” Scott, chairman, House Committee on Education and Labor, and 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 chair, Subcommittee on ~~Workforce~~Wo rkforce Protections, to Protections, to ~~The~~T he Honorable Alex M. Azar II, Honorable Alex M. Azar II,
Secretary of HHS,Secretary of 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. -03-09.pdf.
5048 29 C.F.R. §1910.134 Appendix A. Powered air purifying respirators (PAPR) that 29 C.F.R. §1910.134 Appendix A. Powered air purifying respirators (PAPR) that do not require a seal to the user’s do not require a seal to the user’s
face do not need to be fit tested. face do not need to be fit tested.
5149 29 C.F.R. §1910.134 Appendix B. 29 C.F.R. §1910.134 Appendix B.
~~Congressional Research Service~~
9

~~OSHA: ETS and COVID-19~~

50 OSHA, Temporary ~~OSHA Enforcement Guidance on the Respiratory Protection~~
~~Standard~~
~~In response to shortages of respirators and other PPE during the national response to~~Enforcement Guidance - Health care Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID- the COVID-
~~19 pandemic, OSHA has issued three sets of temporary enforcement guidance to permit the~~
~~following exceptions to the respiratory protection standard:~~
~~1. Employers may suspend annual fit testing of respirators for employees that have~~
~~already been fit tested on the same model respirator;52~~
19 Outbreak, March 14, 2020, at https://www.osha.gov/memos/2020-03-14/temporary-enforcement-guidance-health care-respiratory-protection-annual-fit. Congressional Research Service 9 OSHA: ETS and COVID-19 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);is not damaged, soiled, or contaminated (e.g., with blood, oil, or paint);5351 and and
3. Employers may permit the use of respirators not certified by NIOSH, but 3. Employers may permit the use of respirators not certified by NIOSH, but
approved under standards used by the following countries or jurisdictions, in approved under standards used by the following countries or jurisdictions, in
accordance with the protection equivalency tables provided in Appendices A and accordance with the protection equivalency tables provided in Appendices A and
B of the enforcement guidance document: B of the enforcement guidance document:
 Australia,  Australia,
 Brazil,  Brazil,
 European Union,  European Union,
 Japan,  Japan,
 Mexico,  Mexico,
 People’s Republic of China, and  People’s Republic of China, and
 Republic of Korea. Republic of Korea.5452
California: Cal/OSHA Aerosol Transmissible Disease Standard
Although no OSHA standard Although no OSHA standard ~~specifically~~specifical y covers aerosol or airborne disease transmission, the covers aerosol or airborne disease transmission, the
California Division of Occupational Safety and Health (Cal/OSHA), under its state plan, California Division of Occupational Safety and Health (Cal/OSHA), under its state plan,
promulgated its aerosol transmissible disease (ATD) standard in 2009.promulgated its aerosol transmissible disease (ATD) standard in 2009.5553 The ATD standard covers The ATD standard covers
most most ~~healthcare~~health care workers, laboratory workers, as workers, laboratory workers, as ~~well~~ wel as workers in correctional facilities, as workers in correctional facilities,
homeless shelters, and drug treatment programs. Under the ATD standard, SARS-CoV-2, the 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. virus 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 This classification subjects the virus to stricter control standards than diseases requiring only

~~52 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-~~
~~enforcement-guidance-healthcare-respiratory-protection-annual-fit.~~
~~53 OSHA,~~ droplet precautions, such as seasonal influenza.54 The key requirements of the ATD standard include  written ATD exposure control plan and procedures,  training of al employees on COVID-19 exposure, use of PPE, and procedures if exposed to COVID-19,  engineering and work practice controls to control COVID-19 exposure, including the use of airborne isolation rooms,  provision of medical services to employees, including removal of exposed employees,  specific requirements for laboratory workers, and 51 OSHA, Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus ~~Disease~~Disea se
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.
54 52 OSHA, 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~~Pandem ic, April 3, 2020, at , April 3, 2020, at
https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under. https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under.
5553 Cal. Code Cal. Code Regs.Regs. tit. 8, §5199. tit. 8, §5199. ~~The~~T he California state plan covers all state and local government California state plan covers all state and local government ~~agencies~~agen cies and all and all
private-sector workers in the state, with the exception of maritime workers; workers on military bases andprivate-sector workers in the state, with the exception of maritime workers; workers on military bases and in national in national
parks, monuments, memorials, and recreation areas; workers on federally recognized Native American reservations and parks, monuments, memorials, and recreation areas; workers on federally recognized Native American reservations and
trust lands; andtrust lands; and U.S. Postal Service contractors. U.S. Postal Service contractors.
54 Cal. Code Regs. tit. 8, §5199 Appendix A. Congressional Research Service Congressional Research Service
10 10

OSHA: ETS and COVID-19

~~droplet precautions, such as seasonal influenza.56 The key requirements of the ATD standard~~
~~include~~
~~ written ATD exposure control plan and procedures,~~
~~ training of all employees on COVID-19 exposure, use of PPE, and procedures if~~
~~exposed to COVID-19,~~
~~ engineering and work practice controls to control COVID-19 exposure, including~~
~~the use of airborne isolation rooms,~~
~~ provision of medical services to employees, including removal of exposed~~
~~employees,~~
~~ 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.  are working with a viable virus in the laboratory.5755
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.suspected COVID-19 case.5856 High-hazard procedures are those in which “the potential for being 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.patients on positive pressure ventilation.5957 Emergency medical services (EMS) workers may use 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.

~~56 Cal. Code Regs. tit. 8, §5199 Appendix A.~~
~~57 California Division of Occupational Safety and Health (Cal/OSHA),~~ ~~Interim Guidance for Protecting Health Care~~
~~Workers from~~ 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.58 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. Cal/OSHA COVID-19 ETS On November 19, 2020, the California Occupational Safety and Health Standards Board approved an ETS to specifical y address COVID-19 exposure in the workplace.59 This ETS became effective on November 30, 2020, and is to remain in effect for 180 days and can be 55 California Division of Occupational Safety and Health (Cal/OSHA), Interim Guidance for Protecting Health Care Workers from Exposure to Coronavirus Disease (COVID-19), March 2020, at https://www.dir.ca.gov/dosh/, March 2020, at https://www.dir.ca.gov/dosh/
Coronavirus-info.html. Coronavirus-info.html.
5856 A PAPR uses A PAPR uses a mechanical device to drawa 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.
59 57 Cal. Code Cal. Code Regs.Regs. tit. 8, §5199(b). 58 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. 59 Cal. Code Regs. tit. 8, §3205. Congressional Research Service 11 OSHA: ETS and COVID-19 extended for up to two periods of 90 days each. The Cal/OSHA ETS applies to al covered employers in the state, including state and local government entities, and provides for broader protections than the Cal/OSHA ATD standard. Written COVID-19 Prevention Program Al employers covered by the Cal/OSHA ETS are required to develop and implement written COVID-19 prevention programs. Each written COVID-19 prevention program must include the following components: Communication to Employees Employers must communicate information about the prevention program to employees in forms readily understood by these employees. Employers must ask employees to report to the employer, without fear of reprisal, COVID-19 symptoms and potential COVID-19 hazards and exposures in the workplace. Employers must also provide information on policies and procedures to accommodate workers at elevated risk of COVID-19 complications and information on COVID- 19 testing and COVID-19 hazards. Identification and Evaluation of COVID-19 Hazards Al employers must identify and evaluate potential COVID-19 hazards in the workplace and al ow employees and employee representatives to participate in this process. Employers must establish a COVID-19 symptom screening procedure for all employees either through employee self-screening or screening provided by the employer. Employers must develop procedures to respond to any COVID-19 cases in the workplace and identify al interactions, areas, activities, processes, equipment, and materials that could cause COVID-19 exposure, with the assumption that al persons in a workplace may be contagious. Employers must also evaluate how to maximize the amount of outdoor air in the workplace and improve air filtration. Inspections of the workplace to check for potential COVID-19 hazards must be conducted periodical y by employers. Investigation and Response to COVID-19 Cases Employers must have procedures to investigate COVID-19 cases in the workplace whether or not the exposure occurred in the workplace. The following responses by employers are required whenever there is a COVID-19 case in the workplace:  determine the date the case was last present in the workplace, the date of the COVID-19 test, and the date the person first had COVID-19 symptoms;  determine who in the workplace may have been exposed to COVID-19 by evaluating the work activities and locations in the workplace visited by the person with COVID-19;  give notice of potential COVID-19 exposure, within one business day, to any employees and their representatives, contractors, or employees of other employers who were present at the worksite with the person with COVID-19;  offer free COVID-19 testing during work hours to al employees with potential exposure;  investigate whether workplace conditions may have contributed to the potential exposure and how to reduce these hazards; and Congressional Research Service 12 OSHA: ETS and COVID-19  protect the personal and medical information of the case and other employees. Correction of COVID-19 Hazards Employers must implement policies to correct unsafe or unhealthy conditions, work practices, policies, and procedures in a timely manner based on the severity of the hazards. Training and Instruction Employers must provide training to employees that includes the following:  the employer’s policies and procedures to protect employees from COVID-19 exposure;  information on benefits related to COVID-19 that may be available to employees under federal and state law;  information on COVID-19 transmission in the air and on surfaces and that a contagious person may be asymptomatic;  methods of physical distancing of at least six feet and the importance of wearing face coverings while physical y distancing;  the importance of combining physical distancing with face covering and hand hygiene because particles containing SARS-CoV-2 can travel more than six feet, especial y indoors;  information on the importance of hand washing for at least 20 seconds, the use of hand sanitizer when washing is not possible, and that hand sanitizer is not effective on soiled hands;  information on proper use of face coverings and that cloth face coverings are not PPE; and  information on COVID-19 symptoms and the importance of not coming to work when symptomatic. Physical Distancing Al employees must be separated from other persons by at least six feet, except for momentary contact when persons are moving or when the employer can demonstrate that physical distancing is not possible. If six feet of physical distancing is not possible, then employees must be as far apart as possible. Face Coverings Employers must provide face coverings to employees and ensure they are worn when employees are indoors, outdoors and within six feet of another person, or when required by state or local health orders. Employers must ensure that face coverings are clean and undamaged. The face covering requirement does not apply when an employee is alone in a room; eating and drinking if physical distancing is maintained; wearing respiratory PPE; or unable to wear a face covering for medical, disability, or communications accessibility reasons. For work tasks that cannot be performed while wearing a face covering, or for employees otherwise exempt from the face covering requirement who cannot wear a face shield with a drape at the neck, unmasked employees must be at least six feet from other persons or must be tested for COVID-19 at least twice per week. Congressional Research Service 13 OSHA: ETS and COVID-19 Employers must communicate face covering policies to non-employees in their workplaces and develop policies and procedures to minimize the risk to employees from unmasked members of the public. Engineering and Administrative Controls and PPE Employers must implement engineering and administrative controls to control COVID-19 exposure in the workplace. These include the use of cleanable partitions when physical distancing cannot be maintained, maximizing ventilation of workplaces with outdoor air, cleaning and disinfecting of workplaces, and the evaluation of handwashing facilities and the encouragement of hand hygiene. Employers must evaluate the need for PPE to prevent COVID-19 exposure and provide respirators when required by existing Cal/OSHA standards, including the ATD standard. Employees who conduct procedures that may expose them to potential y infectious material such as saliva or respiratory tract fluids must be provided with eye and respiratory PPE. Reporting, Recordkeeping, and Access Employers must report COVID-19 cases in the workplace to the local health department when required by law and must report any serious il ness or death related to COVID-19 related to employment to Cal/OSHA. Employers must maintain records of the process to implement the written COVID-19 prevention plan and make the plan available immediately upon the request of employees, employee representatives, and Cal/OSHA. Employers must keep a record of al employee COVID-19 cases and make this information available to employees and employee representatives with personal information removed. Exclusion of COVID-19 Cases from the Workplace Employees with COVID-19, whether or not contracted in the workplace, may not return to work until the return to work requirements, provided in the next section of this report, are met. Employees who have been exposed to COVID-19, whether or not in the workplace, may not return to work for 14 days from their last contact with a COVID-19 case. During any period in which a COVID-19 case or exposed person is excluded from the workplace, the employer must maintain the employee’s earnings, seniority, and other rights. Employers may use employer- provided sick leave or other benefits provided under state or federal law to maintain employees’ wages while they are excluded from the workplace and must provide excluded employees with information on available public benefits. Return to Work Criteria The following return to work criteria apply:  Symptomatic COVID-19 cases may return to work when the following criteria are met:  at least 24 hours have passed since the employee has a fever of at least 100.4 degrees that has resolved without the use of fever-reducing medication,  COVID-19 symptoms have improved, and  at least 10 days have passed since symptoms first appeared.  COVID-19 cases that were never symptomatic may return to work when: Congressional Research Service 14 OSHA: ETS and COVID-19  at least 10 days have passed since the sample was collected for the first positive COVID-19 test.  Employees under a quarantine or isolation order issued by a state or local health official may return to work when:  the duration of the order has expired or the order has been lifted; or  if the order did not include a duration, then 10 days after an isolation order or 14 days after a quarantine order. A negative COVID-19 test is not required for an employee to return to work. In cases in which excluding an employee could result in undue risk to the health and safety of the community, Cal/OSHA may, upon request from the employer, permit an employee not under an isolation or quarantine order to return to work if the employee can be isolated in the workplace or respiratory PPE is provided and used in the workplace. Multiple Cases and COVID-19 Outbreaks If a covered workplace has three or more COVID-19 cases within a 14-day period, or if a workplace has been identified by a local health department as the site of a COVID-19 outbreak, the employer must provide COVID-19 testing to al employees at the worksite, with follow-up tests provided after one week and continuing each week until there are no COVID-19 cases in the workplace during a 14-day period. Employers must notify the local health department within 48 hours of becoming aware of three or more cases at a workplace. If a covered workplace has 20 or more COVID-19 cases within a 30 day period, the employer must provide testing to al employees at least twice per week until there are no COVID-19 cases in the workplace during a 14-day period. Employers must also take the following actions:  In buildings with mechanical ventilation, filter recirculated air using filters with Minimum Efficiency Rating Values (MERV) of at least 13 or the highest compatible MERV value and evaluate whether HEPA filtration units or other air cleaning systems would reduce the risk of COVID-19 transmission and, if feasible, use these units or systems.  Determine the need for respiratory PPE or evaluate the existing respiratory PPE program in the workplace.  Evaluate whether to halt any operations at the workplace until COVID-19 hazards can be abated.  Take any other measured ordered by Cal/OSHA. Employer-Provided Housing and Transportation The Cal/OSHA ETS includes specific additional requirements designed to address COVID-19 exposure in housing units provided by employers and transportation to and from work provided by employers. Congressional Research Service 15 OSHA: ETS and COVID-19 ~~tit. 8, §5199(b).~~
~~Congressional Research Service~~
11

~~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.60 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 On July 15, 2020, the Virginia Safety and Health Codes Board adopted an ETS to ~~specifically~~
specifical y protect employees from exposure to SARS-CoV-2, the virus that causes COVID-19.protect employees from exposure to SARS-CoV-2, the virus that causes COVID-19.6160 This ETS, This ETS,
promulgated under Virginia’s state occupational safety and health plan (VOSH) is the first state promulgated under Virginia’s state occupational safety and health plan (VOSH) is the first state
standard to standard to ~~specifically~~specifical y address COVID-19 in the workplace. address COVID-19 in the workplace.6261 As an ETS, the VOSH standard As an ETS, the VOSH standard
expires within six months of its effective date, upon expiration of the Governor’s State of 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 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 and Health Codes Board, whichever comes first. The ETS can be extended only through the
normal state rulemaking process. normal state rulemaking process.
Unlike Unlike the Cal/OSHA ATD standard, the VOSH ETS applies to the Cal/OSHA ATD standard, the VOSH ETS applies to ~~all~~ al state and local government state and local government
agencies and agencies and ~~all~~ al covered private-sector employees in the state. As part of a state plan, the VOSH covered private-sector employees 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. ETS applies to state and local government entities, such as public schools, as employers. ~~All~~
Al covered employers in Virginiacovered employers in Virginia must comply with the following ETS requirements: must comply with the following ETS requirements:
 exposure assessment and determination, notification of suspected cases and  exposure assessment and determination, notification of suspected cases and
contacts with those cases, and employee access to their own exposure and contacts with those cases, and employee access to their own exposure and
medical records; medical records;
 return to work of employees known or suspected to have COVID-19 based on a  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; duration of time since last symptoms or negative COVID-19 tests;6362
 maintenance of physical distancing between employees while working and on  maintenance of physical distancing between employees while working and on
paid breaks at the worksite, including restricted access to the worksite and paid breaks at the worksite, including restricted access to the worksite and
common areas and break rooms; common areas and break rooms;
 compliance with applicable existing PPE and respiratory protection standards  compliance with applicable existing PPE and respiratory protection standards
when physical distancing between employees is not possible; and when physical distancing between employees is not possible; and
 sanitation and disinfection requirements.  sanitation and disinfection requirements.
For For ~~all~~ al employers, if engineering, administrative, or work practice controls are not feasible or do 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 not provide sufficient protection from SARS-CoV-2 transmission, then PPE, including respiratory
PPE—such as respirators, if necessary—must be provided to employees. PPE—such as respirators, if necessary—must be provided to employees.

~~60 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.~~
~~61 Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220. This ETS~~
~~is effective upon publication in a Richmond, VA, newspaper during the week of July 27, 2020.~~
~~62 The~~ 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 60 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. 61 T he Virginia state plan covers all state and local government agencies and all private-sector workers in the state, with Virginia state plan covers all state and local government agencies and all private-sector workers in the state, with
the exception of maritime workers, U.S Postal Service contractors, workers at military bases or other federal enclaves the exception of maritime workers, U.S Postal Service contractors, workers at military bases or other federal enclaves
in which the federal government has civil jurisdiction, workersin which the federal government has civil jurisdiction, workers at the U.S. Department of Energy’s Southeastern Power at the U.S. Department of Energy’s Southeastern Power
Administration Kerr-Philpott System, and aircraft cabin crewAdministration Kerr-Philpott System, and aircraft cabin crew members. members.
6362 A COVID-19 test for the purposes of determining if an employee can return to work must be A COVID-19 test for the purposes of determining if an employee can return to work must be paid for by the paid for by the
employer or offered such that the employee bears no cost for the test. employer or offered such that the employee bears no cost for the test.
Congressional Research Service Congressional Research Service
1216 OSHA: ETS and COVID-19

~~OSHA: ETS and COVID-19~~

~~Hazard and Job Task Classification~~
~~The VOSH ETS requires that each employer assess its workplace for hazards and job tasks that~~
~~potentially 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 potentially 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~~  using aerosol-generating procedures, such as intubation, on patients known ~~patients known~~
or suspected to be infected with SARS-CoV-2; or suspected to be infected with SARS-CoV-2;
 collecting or handling specimens from patients known or  collecting or handling specimens from patients known or suspected to be suspected to be
infected with SARS-CoV-2; and infected with SARS-CoV-2; and
 performing an autopsy involving aerosol-generating  performing an autopsy involving aerosol-generating procedures on the body procedures on the body
of a person known or suspected to be infected with the SARS-CoV-2 virus at of a person known or suspected to be infected with the SARS-CoV-2 virus at
the time of death; and the time of death; and
 “high risk” activities include  “high risk” activities include
 health care services, including inpatient care, outpatient  health care services, including inpatient care, outpatient care, care, ~~skilled~~skil ed nursing nursing
care, and nonmedical support services such as room cleaning, provided to care, and nonmedical support services such as room cleaning, provided to
patients known or suspected to be infected with SARS-CoV-2; patients known or suspected to be infected with SARS-CoV-2;
 first responder and medical transport services to patients  first responder and medical transport services to patients known or suspected known or suspected
to be infected with SARS-CoV-2; and to be infected with SARS-CoV-2; and
 mortuary services to persons known or suspected to be  mortuary services to persons known or suspected to be infected with the infected with the
SARS-CoV-2 virus at the time of death. SARS-CoV-2 virus at the time of death.
“Medium” risk activities are those that require employees to have more than minimal contact, “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 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.suspected to be infected with SARS-CoV-2.6463 “Lower” risk activities are those that do not require “Lower” risk activities are those that do not require
contact with other persons within six feet or that are able to utilizecontact with other persons within six feet or that are able to utilize the following types of the following types of
engineering, administrative, or work practice controls to minimize contact between persons: engineering, administrative, or work practice controls to minimize contact between persons:
  ~~installation~~ instal ation of floor to ceiling barriers, such as barriers between cashiers and of floor to ceiling barriers, such as barriers between cashiers and
customers; customers;
 telecommuting;  telecommuting;
 staggered work shifts to reduce the number of workers at a site;  staggered work shifts to reduce the number of workers at a site;
 delivering services remotely, including curbside pickup of retail purchases; and  delivering services remotely, including curbside pickup of retail purchases; and
 mandatory physical distancing of persons.  mandatory physical distancing of persons.
The use of face coverings other than respirators or medical or surgical masks, including cloth face 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 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 contact between persons. However, the VOSH ETS requires the use of face coverings for brief
contacts between persons within six feet of each other.contacts between persons within six feet of each other.

~~64 Examples of “medium” risk work activities are provided in the VOSH ETS at 16 Va. Admin. Code §25-220-30.~~
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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 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 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 “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 isolation rooms (AIIR) for known or suspected COVID-19 patients and aerosol-generating
63 Examples of “medium” risk work activities are provided in the VOSH ET S at 16 Va. Admin. Code §25-220-30. Congressional Research Service 17 OSHA: ETS and COVID-19 procedures and Biosafety Level 3 (BSL-3) precautions for the handling of specimens from known procedures and Biosafety Level 3 (BSL-3) precautions for the handling of specimens from known
or suspected COVID-19 patients.or suspected COVID-19 patients.65
64 Employers with “very high” and “high” risk activities must implement administrative and work Employers with “very high” and “high” risk activities must implement administrative and work
practice controls, including the prescreening of practice controls, including the prescreening of ~~all~~ al employees to ensure that employees do not employees to ensure that employees do not
have signs or symptoms of COVID-19; enhanced medical screening of employees during 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 COVID-19 outbreaks; and the use of flexible work arrangements, such as telecommuting, when
feasible. In addition, feasible. In addition, ~~all~~ al employers with “very high” or “high” risk activities must provide, to the 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 extent feasible, psychological and behavioral support to address employee stress at no cost to the
employee. employee.
The standard also provides for engineering, administrative, and work practice controls for The standard also provides for engineering, administrative, and work practice controls for
“medium” risk activities.“medium” risk activities.66
65 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 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 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 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 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 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 representatives in this assessment process and verify that this assessment has been conducted
through a written certification. through a written certification.
If hazards that require PPE are identified, the employer must select and provide the appropriate 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 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 PAPR are used as PPE, the existing OSHA standards for respiratory PPE, which include medical
evaluation of employees and fit testing, must be followed. evaluation of employees and fit testing, must be followed.
Unless contraindicated by the hazard and PPE assessment, when any employee is in contact 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 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: must be provided with the following types of PPE:
 gloves,  gloves,
 gown large enough to cover areas needing protection,  gown large enough to cover areas needing protection,
 face shield or goggles, and  face shield or goggles, and
 respirator.  respirator.

~~65 The VOSH ETS requires compliance with Biosafety Level 3 precautions provided in HHS,~~ ~~Biosafety in~~
~~Microbiological and Biomedical Laboratories. Fifth Edition, HHS~~ 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 64 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 Publication no. (CDC) 21-1112, December 2009, at
https://www.cdc.gov/labs/BMBL.html. https://www.cdc.gov/labs/BMBL.html.
6665 Engineering, administrative, and work practice controls for “medium” risk activities are provided in the VOSH Engineering, administrative, and work practice controls for “medium” risk activities are provided in the VOSH ~~ETS~~ ET S
at 16 Va.at 16 Va. Admin. Code §25-220-60. Admin. Code §25-220-60.
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~~OSHA: ETS and COVID-19~~

~~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~~
~~All 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 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 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 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 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 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 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 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 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 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 and contractors to ensure employees of these businesses comply with the VOSH ETS and the
employer’s infectious disease preparedness and response plan. employer’s infectious disease preparedness and response plan.
Training
~~All~~ Al employers with “very high,” “high,” or “medium” risk activities must provide training to employers with “very high,” “high,” or “medium” risk activities must provide training to ~~all~~
al employees, including those employees whose work does not involve any COVID-19 risks. This 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 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 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. 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 Written certification of training must be prepared, and retraining must be provided when
necessary. necessary.
Employers with only “lower” risk activities are not required to prepare a formal training plan but 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 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 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. 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 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 on the infectious disease preparedness and response plan, which must be completed within 60
days.days.
Whistleblower Protections
The VOSH ETS prohibits any employer from discharging or otherwise discriminating against any The VOSH ETS prohibits any employer from discharging or otherwise discriminating against any
employee who does the following: employee who does the following:
 exercises his or her rights under the ETS or existing whistleblower protection  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 provisions, including the limited right of an employee to refuse work because of
a reasonable fear of injury or death or serious injury;a reasonable fear of injury or death or serious injury;67

~~67 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 regulatory enforcement~~
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~~OSHA: ETS and COVID-19~~
66
 provides and wears his or her own PPE, provided the PPE does not create a  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 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  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 to the employer, the employer’s agent, other employees, the government, or the
public through any type of media including social media. public through any type of media including social media.
66 T o 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 regulatory 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. Congressional Research Service 19 OSHA: ETS and COVID-19 Michigan: MIOSHA COVID-19 Emergency Rules
On October 14, 2020, the director of the Michigan Department of Labor and Economic On October 14, 2020, the director of the Michigan Department of Labor and Economic
Opportunity, which operates Michigan’s state occupational safety and health plan (MIOSHA), Opportunity, which operates Michigan’s state occupational safety and health plan (MIOSHA),
promulgated emergency rules to address workplace exposure to COVID-19.promulgated emergency rules to address workplace exposure to COVID-19.6867 These rules, which These rules, which
apply to apply to ~~all~~ al employers in the state, went into immediate effect and employers in the state, went into immediate effect and ~~will~~ wil remain in effect for six remain in effect for six
months. In addition to rules that apply to months. In addition to rules that apply to ~~all~~ al employers, the emergency rules include specific employers, the emergency rules include specific
provisions that apply to the following industries: provisions that apply to the following industries:
 construction;  construction;
 manufacturing;  manufacturing;
 retail, libraries, and museums;  retail, libraries, and museums;
 restaurants and bars;  restaurants and bars;
  ~~healthcare~~health care; ;
 in-home services such as house cleaning and repair;  in-home services such as house cleaning and repair;
 personal care services such as hair styling and tattooing;  personal care services such as hair styling and tattooing;
 public accommodations such as sports and entertainment venues;  public accommodations such as sports and entertainment venues;
 sports and exercise facilities;  sports and exercise facilities;
 meat and poultry processing; and  meat and poultry processing; and
 casinos. casinos.6968
Exposure Determination
Rule 3 of the MIOSHA emergency rules requires Rule 3 of the MIOSHA emergency rules requires ~~all~~ al employers to evaluate employers to evaluate ~~all~~ al routine and routine and
anticipated job tasks and categorize these job tasks based on potential employee exposure to anticipated job tasks and categorize these job tasks based on potential employee exposure to
COVID-19 into one of the following four categories: COVID-19 into one of the following four categories:
1. “Lower exposure risk” tasks are those that do not require contact with known or 1. “Lower exposure risk” tasks are those that do not require contact with known or
suspected COVID-19 cases or frequent close (within six feet) contact with the suspected COVID-19 cases or frequent close (within six feet) contact with the
general public. general public.
2. “Medium exposure risk” tasks are those that require frequent or close contact 2. “Medium exposure risk” tasks are those that require frequent or close contact
with persons who may be infected with COVID-19 but who are not known or with persons who may be infected with COVID-19 but who are not known or
suspected COVID-19 cases. In areas of the state without ongoing community suspected COVID-19 cases. In areas of the state without ongoing community

~~channels. This 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.~~
68transmission of COVID-19, tasks that require frequent contact with persons travel ing from areas with widespread COVID-19 transmission are included in this category. In areas with ongoing community transmission, tasks that involve contact with the general public are included in this category. 3. “High exposure risk” tasks are those with high potential for exposure to known or suspected COVID-19 cases. Licensed health care providers, medical first responders, nursing home workers, law enforcement and correctional officers, 67 Department of Labor and Economic Opportunity, Michigan Occupational Safety and Health Administration Department of Labor and Economic Opportunity, Michigan Occupational Safety and Health Administration
(MIOSHA)(MIOSHA) Emergency Rules:Emergency Rules: Coronavirus Coronavirus ~~2019~~20 19 (COVID-19), available at https://www.michigan.gov//documents/leo/ (COVID-19), available at https://www.michigan.gov//documents/leo/
Final_MIOSHA_Rules_705164_7.pdf. Final_MIOSHA_Rules_705164_7.pdf. ~~The~~T he Michigan state plan covers all state and local government agencies and all Michigan state plan covers all state and local government agencies and all
private-sector workers in the state, with the exception of maritime workers, U.S. Postal Service contractors, workers at private-sector workers in the state, with the exception of maritime workers, U.S. Postal Service contractors, workers at
businessesbusinesses ~~owned~~ owned or operated by tribal membersor operated by tribal members at Indian reservations, and aircraft cabin crewat Indian reservations, and aircraft cabin crew members.members.
69 68 MIOSHA MIOSHA Emergency Rules:Emergency Rules: Coronavirus 2019 (COVID-19), RuleCoronavirus 2019 (COVID-19), Rule 11. 11.
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~~OSHA: ETS and COVID-19~~

~~transmission of COVID-19, tasks that require frequent contact with persons~~
~~travelling from areas with widespread COVID-19 transmission are included in~~
~~this category. In areas with ongoing community transmission, tasks that involve~~
~~contact with the general public are included in this category.~~
~~3. “High exposure risk” tasks are those with high potential for exposure to known~~
~~or suspected COVID-19 cases. Licensed healthcare providers, medical first~~
~~responders, nursing home workers, law enforcement and correctional officers,~~
and mortuary workers are examples of types of workers that may perform tasks and mortuary workers are examples of types of workers that may perform tasks
in this category. in this category.
4. “Very 4. “Very high exposure risk” tasks are those that involve the generation of aerosols high exposure risk” tasks are those that involve the generation of aerosols
during medical or mortuary procedures on known or suspected COVID-19 cases during medical or mortuary procedures on known or suspected COVID-19 cases
and the collection and handling of laboratory specimens from known or and the collection and handling of laboratory specimens from known or
suspected COVID-19 cases.suspected COVID-19 cases.
Preparedness and Response Plan
Rule 4 of the MIOSHA emergency rules requires Rule 4 of the MIOSHA emergency rules requires ~~all~~ al employers to develop a written COVID-19 employers to develop a written COVID-19
preparedness and response plan based on current CDC and OSHA guidance. This plan must detail preparedness and response plan based on current CDC and OSHA guidance. This plan must detail
measures the employer measures the employer ~~will~~ wil take to protect employees from COVID-19 exposure and must be take to protect employees from COVID-19 exposure and must be
readily availablereadily available to employees and their representatives. to employees and their representatives.
Basic Infection Prevention Measures
Rule 5 of the MIOSHA emergency rules requires Rule 5 of the MIOSHA emergency rules requires ~~all~~ al employers to implement the following basic employers to implement the following basic
infection prevention measures: infection prevention measures:
 promote frequent hand-washing and provide hand-washing facilities or hand  promote frequent hand-washing and provide hand-washing facilities or hand
sanitizer to workers, customers, and visitors; sanitizer to workers, customers, and visitors;
 require employees who are sick to not report to work or to report to an isolated  require employees who are sick to not report to work or to report to an isolated
location; location;
 prohibit workers from using other workers’ desks, phones, and other equipment  prohibit workers from using other workers’ desks, phones, and other equipment
when possible; when possible;
 increase facility cleaning,  increase facility cleaning, ~~especially~~especial y of high-touch surfaces and shared of high-touch surfaces and shared
equipment; equipment;
 establish procedures, consistent with CDC guidance, for disinfection of the  establish procedures, consistent with CDC guidance, for disinfection of the
worksite if a worker, customer, or visitor has a known case of COVID-19; worksite if a worker, customer, or visitor has a known case of COVID-19;
 use Environmental Protection Agency (EPA) approved disinfectants that are  use Environmental Protection Agency (EPA) approved disinfectants that are
expected to effective against SARS-CoV-2; expected to effective against SARS-CoV-2;
 follow  follow ~~all~~ al manufacturer’s guidelines for use of manufacturer’s guidelines for use of ~~all~~ al cleaning and disinfectant cleaning and disinfectant
products; and products; and
 prohibit in-person work for employees whose work can be done remotely.  prohibit in-person work for employees whose work can be done remotely.
Health Surveillance
Rule 6 of the MIOSHA emergency rules requires Rule 6 of the MIOSHA emergency rules requires ~~all~~ al employers to implement a health employers to implement a health
~~surveillance~~surveil ance system for the workplace. This system must include, at a minimum, a COVID-19 system for the workplace. This system must include, at a minimum, a COVID-19
screening questionnaire for screening questionnaire for ~~all~~ al employees and contractors entering the workplace. Employees employees and contractors entering the workplace. Employees
must be directed to immediately report any signs or symptoms of COVID-19 to the employer and must be directed to immediately report any signs or symptoms of COVID-19 to the employer and
known and suspected COVID-19 cases must be isolated from the rest of the workforce. When an known and suspected COVID-19 cases must be isolated from the rest of the workforce. When an
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~~OSHA: ETS and COVID-19~~

employer learns of an employee, contractor, customer, or visitor to the worksite with a known employer learns of an employee, contractor, customer, or visitor to the worksite with a known
case of COVID-19, the employer must immediately notify the local health department and, must case of COVID-19, the employer must immediately notify the local health department and, must
notify, within 24 hours, any workers, contractors, or suppliers who may have come into contact notify, within 24 hours, any workers, contractors, or suppliers who may have come into contact
with the infected person. When determining if an employee with a known or suspected case of with the infected person. When determining if an employee with a known or suspected case of
COVID-19 may return to the workplace, the employer must follow CDC guidelines and health COVID-19 may return to the workplace, the employer must follow CDC guidelines and health
department quarantine and isolation orders.department quarantine and isolation orders.
Congressional Research Service 21 OSHA: ETS and COVID-19 Workplace Controls
Rule 7 of the MIOSHA emergency rules requires Rule 7 of the MIOSHA emergency rules requires ~~all~~ al employers to implement the following employers to implement the following
workplace controls: workplace controls:
 designate one or more worksite COVID-19 safety coordinators to implement,  designate one or more worksite COVID-19 safety coordinators to implement,
monitor, and report on COVID-19 control strategies developed by the employer monitor, and report on COVID-19 control strategies developed by the employer
and to remain on site at and to remain on site at ~~all~~ al times when employees are present; times when employees are present;
 place posters in appropriate languages in the workplace that provide information  place posters in appropriate languages in the workplace that provide information
on staying away from work while sick, cough and sneeze etiquette, and hand on staying away from work while sick, cough and sneeze etiquette, and hand
hygiene; hygiene;
 keep  keep ~~all~~ al persons at least six feet from each other using signs, floor markings, and persons at least six feet from each other using signs, floor markings, and
barriers appropriate for the worksite, to the extent possible; barriers appropriate for the worksite, to the extent possible;
 provide  provide ~~all~~ al employees with non-medical grade face coverings at no cost to the employees with non-medical grade face coverings at no cost to the
employees; employees;
 require the use of face coverings when employees cannot maintain six feet of  require the use of face coverings when employees cannot maintain six feet of
distance from other persons in the workplace, and consider the use of face shields distance from other persons in the workplace, and consider the use of face shields
when three feet of distance cannot be maintained; when three feet of distance cannot be maintained;
 require face coverings in shared spaces, such as restrooms and  require face coverings in shared spaces, such as restrooms and ~~hallways~~hal ways and and
during in-person meetings. during in-person meetings.
PPE
Rule 8 of the MIOSHA emergency rules requires that employers provide appropriate PPE, Rule 8 of the MIOSHA emergency rules requires that employers provide appropriate PPE,
including respiratory protection, to employees based on the exposure risks of the job and current including respiratory protection, to employees based on the exposure risks of the job and current
CDC and OSHA guidelines. CDC and OSHA guidelines. ~~All~~ Al PPE must be properly fitted, inspected, maintained, cleaned, PPE must be properly fitted, inspected, maintained, cleaned,
stored, and disposed of. In workplaces that provide medical treatment to known or suspected stored, and disposed of. In workplaces that provide medical treatment to known or suspected
COVID-19 cases, employees with frequent or prolonged close contact with such patients must be COVID-19 cases, employees with frequent or prolonged close contact with such patients must be
provided with and wear, at a minimum, an N95 respirator, goggles or face shield, and gown.provided with and wear, at a minimum, an N95 respirator, goggles or face shield, and gown.
Training Requirements
Rule 10 of the MIOSHA emergency rules requires Rule 10 of the MIOSHA emergency rules requires ~~all~~ al employers to provide training and employers to provide training and
communication, in languages common among the employees, on the following subjects: communication, in languages common among the employees, on the following subjects:
 workplace infection-control practices;  workplace infection-control practices;
 proper use of PPE;  proper use of PPE;
 how to notify the employer of COVID-19 symptoms or diagnosis;  how to notify the employer of COVID-19 symptoms or diagnosis;
 how to report unsafe working conditions.  how to report unsafe working conditions.
This training must be updated if the employer’s COVID-19 preparedness and response This training must be updated if the employer’s COVID-19 preparedness and response
plan plan changes or new information on COVID-19 transmission becomes available.changes or new information on COVID-19 transmission becomes available.
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Recordkeeping Requirements
Rule 11 of the MIOSHA emergency rules requires that Rule 11 of the MIOSHA emergency rules requires that ~~all~~ al employers maintain, for one year, employers maintain, for one year,
records of employee training, the screening of persons entering the workplace, and any health records of employee training, the screening of persons entering the workplace, and any health
~~surveillance~~ surveil ance notifications required by Rule 6. notifications required by Rule 6.
Congressional Research Service 22 OSHA: ETS and COVID-19 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 comments on strategies to control exposure to infectious diseases in ~~healthcare~~health care workplaces. workplaces.7069
After collecting public comments and holding public meetings, OSHA completed the SBREFA After collecting public comments and holding public meetings, OSHA completed the SBREFA
process in 2014. Since then, however, no public actions have occurred on this rulemaking; since process in 2014. Since then, however, no public actions have occurred on this rulemaking; since
spring 2017, this rulemaking has been listed as a “long-term action” in DOL’s semiannual spring 2017, this rulemaking has been listed as a “long-term action” in DOL’s semiannual
regulatory agenda. regulatory agenda.
Congressional Activity to Require an OSHA
Emergency Temporary Standard on COVID-19
On March 5, 2020, Representative Bobby Scott, chairman of the House Committee on Education On March 5, 2020, Representative Bobby Scott, chairman of the House Committee on Education
and Labor, and Representative Alma Adams, chair of the Subcommittee on Workforce and Labor, and Representative Alma Adams, chair of the Subcommittee on Workforce
Protections, sent a letter to Secretary of Labor Eugene Scalia 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 ETS to address COVID-19 exposure among ~~healthcare~~health care workers. workers.7170 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.7271
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.7372
In addition, in March 2020, David Michaels, who served as the Assistant Secretary of Labor for In addition, in March 2020, David Michaels, who served as the Assistant Secretary of Labor for
Occupational Safety and HealthOccupational Safety and Health during the Obama Administration, wrote an op-ed in during the Obama Administration, wrote an op-ed in The Atlantic
~~calling~~cal ing on OSHA to promulgate a COVID-19 ETS. on OSHA to promulgate a COVID-19 ETS.7473 On March 6, 2020, the AFL-CIO and 22 On March 6, 2020, the AFL-CIO and 22
other unions petitioned OSHA for an ETS on infectious diseases that would cover other unions petitioned OSHA for an ETS on infectious diseases that would cover ~~all~~ al workers workers
with potential exposures.with potential exposures.7574 OSHA OSHA ~~formally~~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, or~~

~~70 OSHA,~~ general y, or from COVID-19.75 National Nurses United submitted a similar petition requesting that OSHA promulgate an ETS based largely on the Cal/OSHA ATD standard.76 On May 4, 2020, the Center 69 OSHA, “Infectious Diseases,” 75“Infectious Diseases,” 75 Federal Register 24835, May 6, 2010. 24835, May 6, 2010.
7170 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.
7271 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 . 72.
73 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 Scalia, Honorable Eugene Scalia, Secretary of Labor, Secretary of Labor,
March 9, 2020, at https://www.baldwin.senate.gov/imo/media/doc/20200309%20OSHA%March 9, 2020, at https://www.baldwin.senate.gov/imo/media/doc/20200309%20OSHA%~~20ETS~~20ET S%20Letter.pdf. %20Letter.pdf.
7473 David Michaels, “What David Michaels, “What ~~Trump~~T rump Could Do Right Now Could Do Right Now to Keep Workers Safe From the Coronavirus,” to Keep Workers Safe From the Coronavirus,” The Atlantic, ,
March 2, 2020, at https://www.theatlantic.com/ideas/archive/2020/03/use-osha-help-stem-covid-19-pandemic/607312/. March 2, 2020, at https://www.theatlantic.com/ideas/archive/2020/03/use-osha-help-stem-covid-19-pandemic/607312/.
7574 Letter from Richard L. Letter from Richard L. ~~Trumka~~T rumka, president, AFL-CIO, to , president, AFL-CIO, to ~~The~~T he Honorable Eugene Scalia, 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.
~~Congressional Research Service~~
19

~~OSHA: ETS and COVID-19~~

~~from COVID-19.76 National Nurses United submitted a similar petition requesting that OSHA~~
~~promulgate an ETS based largely on the Cal/OSHA ATD standard.77 On May 4, 2020, the Center~~
~~for Food Safety and Food Chain Workers Alliance~~75 Letter from Loren Sweatt, Principal Deputy Assistant Secretary of Labor, to Richard L. T rumka, president, AFL -CIO, May 29, 2020. 76 Letter from Bonnie Castillo, executive director, National Nurses United, to T he Honorable Eugene Scalia, Secretary of Labor, and T he Honorable Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, March 4, 2020, at https://act.nationalnursesunited.org/page/-/files/graphics/NNUPetitionOSHA03042020.pdf. Congressional Research Service 23 OSHA: ETS and COVID-19 for Food Safety and Food Chain Workers 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.7877 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.7978 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 ETS within one month of enactment. The ETS would be required to cover ~~healthcare~~health care workers and 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 exposure. The ETS would be required to include an exposure control plan provision and be, at a 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 standardrequiring OSHA to include the elements of the Cal/OSHA ATD standard and ETS, the VOSH COVID-19 , the VOSH COVID-19
ETS, and the MIOSHA emergency rules in this ETS. Title II of the ETS, and the MIOSHA emergency rules in this ETS. Title II of the ~~bill~~ bil would provide that would provide that
hospitals and hospitals and ~~skilled~~skil ed nursing facilities that receive Medicare funding and that are owned by nursing facilities that receive Medicare funding and that are owned by state state
or local government units and not subject to state plans would be required to comply with or local government units and not subject to state plans would be required to comply with the the
ETS. Similar provisions are included in S. 3475. ETS. Similar provisions are included in S. 3475.
P.L. 116-127, the Families First Coronavirus Response Act
The provisions of H.R. 6139 were included as Division C of H.R. 6201, the Families First The provisions of H.R. 6139 were included as Division C of H.R. 6201, the Families First
Coronavirus Response Act, as introduced in the House. The American Hospital Association Coronavirus Response Act, as introduced in the House. The American Hospital Association
(AHA) issued an alert to its members expressing its opposition to the OSHA ETS provisions in (AHA) issued an alert to its members expressing its opposition to the OSHA ETS provisions in
the the ~~bill.80 Specifically~~bil .79 Specifical y, the AHA, the AHA opposed the requirement that the ETS be based on the CDC’s opposed the requirement that the ETS be based on the CDC’s
2007 guidance. The AHA2007 guidance. The AHA stated that unlike severe acute respiratory syndrome (SARS), which stated that unlike severe acute respiratory syndrome (SARS), which
was transmitted through the air, COVID-19 transmission is through droplets and surface contacts. was transmitted through the air, COVID-19 transmission is through droplets and surface contacts.
Thus, the requirement of the 2007 CDC guidance that N95 respirators, rather than surgical masks, Thus, the requirement of the 2007 CDC guidance that N95 respirators, rather than surgical masks,
be used for patient contact is not necessary to protect be used for patient contact is not necessary to protect ~~healthcare~~health care workers from COVID-19, and 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

~~76 Letter from Loren Sweatt, Principal Deputy Assistant Secretary of Labor, to Richard L. Trumka, president, AFL-~~
~~CIO, May 29, 2020.~~
~~77 Letter from Bonnie Castillo, executive director, National Nurses United, to The Honorable Eugene Scalia, Secretary~~
~~of Labor, and The Honorable Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and~~
~~Health, March 4, 2020, at https://act.nationalnursesunited.org/page/-/files/graphics/NNUPetitionOSHA03042020.pdf.~~
78 claimed that shortages of available respirators could reduce the capacity of hospitals to treat COVID-19 patients, due to a lack of respirators for staff. The OSHA ETS provisions were not included in the version of the legislation that was passed by the House and the Senate and signed into law as P.L. 116-127. 77 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.
7978 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.
8079 Emily Kopp, “Hospitals want to kill a policy shielding Emily Kopp, “Hospitals want to kill a policy shielding nurses from COVID-19nurses from COVID-19 ~~because~~ because there aren’t enough masks,” there aren’t enough masks,”
Roll Call, March 3, 2020, at https://www.rollcall.com/2020/03/13/hospitals-want, March 3, 2020, at https://www.rollcall.com/2020/03/13/hospitals-want -to-kill-a-policy-shielding-nurses--to-kill-a-policy-shielding-nurses-
from-covid-19-because-there-arent-enough-masks/. from-covid-19-because-there-arent-enough-masks/. ~~This~~T his alert is available to American Hospital Association (AHA) alert is available to American Hospital Association (AHA)
members on the AHA websitemembers on the AHA website at https://www.aha.org. at https://www.aha.org.
Congressional Research Service Congressional Research Service
2024 OSHA: ETS and COVID-19

~~OSHA: ETS and COVID-19~~

~~claimed that shortages of available respirators could reduce the capacity of hospitals to treat~~
~~COVID-19 patients, due to a lack of respirators for staff. The OSHA ETS provisions were not~~
~~included in the version of the legislation that was passed by the House and the Senate and signed~~
~~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 months of enactment to cover ~~healthcare~~health care workers, firefighters and emergency response workers, workers, firefighters and emergency response workers,
and workers in other occupations that CDC or OSHA determines to have an elevated risk of and workers in other occupations that CDC or OSHA determines to have an elevated risk of
COVID-19 exposure. Division D of H.R. 6379 would amend the OSH Act, for the purposes of the COVID-19 exposure. Division D of H.R. 6379 would amend the OSH Act, for the purposes of the
ETS only, such that state and local government employers in states without state plans would be ETS only, such that state and local government employers in states without state plans would be
covered by the ETS. The provisions of Division D of H.R. 6379 were also included in S. 3584, covered by the ETS. The provisions of Division D of H.R. 6379 were also included in S. 3584,
the COVID-19 Workers First Protection Act of 2020, as introduced in the Senate. the COVID-19 Workers First Protection Act of 2020, as introduced in the Senate.
This legislation 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~~ ATD standard and ETS, the VOSH COVID-19 ETS, and the MIOSHA , the VOSH COVID-19 ETS, and the MIOSHA
emergency rules in this ETS and permanent standard. Although the ETS provisions in H.R. 6139 emergency rules 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 the 2007 CDC guidance, specific 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 legislation.reference to the 2007 guidance is not included in this legislation. Rather, under Rather, under H.R. 6379, the H.R. 6379, the
ETS and permanent standard would have to incorporate, as appropriate, “guidelines issued by the ETS and permanent standard would have to incorporate, as appropriate, “guidelines issued by the
Centers for Disease Control and Prevention, and the National Institute for Occupational Safety Centers for Disease Control and Prevention, and the National Institute for Occupational Safety
and Health, which are designed to prevent the transmission of infectious and Health, which are designed to prevent the transmission of infectious agents in agents in ~~healthcare~~
health care settings” and scientific research on novel pathogens. settings” and scientific research on novel 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
ETS at least as effective as the ETS, ETS at least as effective as the ETS, ~~within~~no more than 14 days 14 days ofafter the legislation’s enactment. the legislation’s enactment.
H.R. 6559, the COVID-19 Every Worker Protection Act of 2020
H.R. 6559, the COVID-19 Every Worker Protection Act of 2020, was introduced in the House by H.R. 6559, the COVID-19 Every Worker Protection Act of 2020, was introduced in the House by
Representative Bobby Scott on April 21, 2020. This legislation includes the ETS and permanent Representative Bobby Scott on April 21, 2020. This legislation includes the ETS and permanent
standard provisions of Division D of H.R. 6379 and S. 3584 and would require that these standard provisions of Division D of H.R. 6379 and S. 3584 and would require that these
standards cover standards cover ~~healthcare~~health care workers, emergency medical responders, and “other employees at 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. 3677 and were incorporated into H.R. 6800, the Heroes Act, Similar provisions are included in S. 3677 and were incorporated into H.R. 6800, the Heroes Act,
~~as passed by the House.~~
~~Congressional Research Service~~
21

~~OSHA: ETS and COVID-19~~
and H.R. 925, the revised 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.8180 OSHA’s reporting and 80 29 U.S.C. §§657(c) and 673(a). Congressional Research Service 25 OSHA: ETS and COVID-19 ~~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.8281 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 to OSHA serious exempt from the recordkeeping requirements but not the requirement to report to OSHA serious
injuries, injuries, ~~illnesses~~il nesses, and deaths., and deaths.8382 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.8483 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.8584 One of the listed exemptions is One of the listed exemptions is
“The “The ~~illness~~il ness is the common cold or flu (Note: contagious diseases such as tuberculosis, is the common cold or flu (Note: contagious diseases such as tuberculosis,
~~brucellosis~~brucel osis, hepatitis A, or plague are considered work-related if the employee is infected at , hepatitis A, or plague are considered work-related if the employee is infected at
work).”work).”8685
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. Absent any specific guidance, this may make it difficult for employers to determine transmission. Absent any specific guidance, this may make it difficult for employers to determine
if an employee’s COVID-19 is subject to the recordkeeping requirements. if an employee’s COVID-19 is subject to the recordkeeping requirements.
Initial OSHA Recordkeeping Guidance
On AprilOn April 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be
treated under the recordkeeping requirements.treated under the recordkeeping requirements.8786 This guidance stated that COVID-19 cases were This guidance stated that COVID-19 cases were
recordable if they were work-related. recordable if they were work-related.
Under this guidance, employers in the following industry groups were to fully comply with the Under this guidance, employers in the following industry groups were to fully comply with the
recordkeeping regulations, including the requirement to determine if COVID-19 cases were recordkeeping regulations, including the requirement to determine if COVID-19 cases were
work-related: work-related:
  ~~healthcare~~health care; ;
 emergency response, including firefighting, emergency medical services, and law  emergency response, including firefighting, emergency medical services, and law
enforcement; and enforcement; and
 correctional institutions.  correctional institutions.

~~81 29 U.S.C. §§657(c) and 673(a).~~
~~82 OSHA’s~~ For al 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 were met: 81 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.
~~83 The~~ 82 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.
8483 29 C.F.R. §1904.5. 29 C.F.R. §1904.5.
8584 29 C.F.R. §1905.5(a). 29 C.F.R. §1905.5(a).
8685 29 C.F.R. §1904.5(b)(2)(viii). 29 C.F.R. §1904.5(b)(2)(viii).
8786 OSHA, OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), April 10, 2020, at , April 10, 2020, at
https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19. https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
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2226 OSHA: ETS and COVID-19

~~OSHA: ETS and COVID-19~~

~~For all other employers, OSHA required employers to determine if COVID-19 cases were work-~~
~~related and subject to the recordkeeping requirements only if both of the following two conditions~~
~~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.8887
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
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.
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.8988 Commonly referred to as the Commonly referred to as the

~~88 OSHA,~~ whistleblower protection provision, this provision protects any employee who takes any of the following actions: 87 OSHA, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), May 19, , May 19,
2020, at https://www.osha.gov/memos/2020-05-19/revised-enforcement2020, at https://www.osha.gov/memos/2020-05-19/revised-enforcement -guidance-recording-cases-coronavirus--guidance-recording-cases-coronavirus-
disease-2019-covid-19. disease-2019-covid-19.
8988 29 U.S.C. 29 U.S.C. §660(c). OSHA§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, at https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart2009, at https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart -10.8-Final.pdf. -10.8-Final.pdf.
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OSHA: ETS and COVID-19

~~whistleblower protection provision, this provision protects any employee who takes any of the~~
~~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.9089
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.9190 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.92
91 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  a violation of the ETS or permanent standard promulgated pursuant to the pursuant to the
legislation; legislation;
 a violation of the infectious disease control plan required by  a violation of the infectious disease control plan required by the ETS or the ETS or
permanent standard; or permanent standard; or
 a good-faith concern about an infectious disease hazard in  a good-faith concern about an infectious disease hazard in the workplace; the workplace;
 seeking assistance from the employer or a local, state, or federal agency with  seeking assistance from the employer or a local, state, or federal agency with
such a report; and such a report; and
 using  using ~~personally~~personal y supplied PPE with a higher level of protection than offered by supplied PPE with a higher level of protection than offered by
the employer. the employer.
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.9392 The AHA also stated that the provision The AHA also stated that the provision

90that would require the ETS to be based on state standards “suggests that the federal government is 89 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.
9190 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.
9291 29 C.F.R. §1977.12(b)(2). 29 C.F.R. §1977.12(b)(2).
9392 Letter from Letter from ~~Thomas~~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. House of Representatives, May 14, 2020, at https://www.aha.org/system/files/media/file/2020/05/web-AHALett ertoHouseonHEROESAct051420final.pdf. Congressional Research Service Congressional Research Service
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~~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.”
H.R. 925, The Heroes Act (Revised)
The provisions of H.R. 6559 and H.R. 6800 were included in the House Amendment to the Senate The provisions of H.R. 6559 and H.R. 6800 were included in the House Amendment to the Senate
Amendment to H.R. 925, the revised Heroes Act, passed by the House on October 1, 2020.Amendment to H.R. 925, the revised Heroes Act, passed by the House on October 1, 2020.

~~Speaker, U.S. House of Representatives, May 14, 2020, at https://www.aha.org/system/files/media/file/2020/05/web-~~
~~AHALettertoHouseonHEROESAct051420final.pdf.~~
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Appendix. OSHA Emergency Temporary Standards
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
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