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

Changes from June 2, 2021 to July 13, 2021

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

Occupational Safety and Health Administration ~~June 2~~July 13, 2021 , 2021
(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~~
~~standard that protects health care or other workers from airborne or aerosol transmission of~~

~~disease or diseases transmitted by airborne droplets. Some in Congress, and some groups~~
~~representing health care, meat and poultry processing, and other workers, are calling on OSHA to promulgate an emergency~~
~~temporary standard (ETS) to protect workers from exposure to~~On June 21, 2021, the Occupational Safety and Health Administration (OSHA) promulgated an Emergency Temporary Standard (ETS) for the prevention of the transmission of SARS-CoV-2, ~~SARS-CoV-2,~~ the virus that causes the virus that causes ~~Coronavirus Disease 2019~~
~~(COVID-19).~~ COVID-19 in health care employment settings. 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 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~~
~~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~~
~~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. The agency that operates the state~~
~~occupational safety health plan in Michigan (MIOSHA) has promulgated an ETS to specifically address COVID-19 in~~
~~workplaces. In January 2021, the Virginia state plan (VOSH) promulgated a permanent standard to supersede its ETS, and in~~
~~May 2021, the Oregon state plan (Oregon OSHA) replaced its ETS with a permanent standard.~~
~~Provisions in various COVID-19 relief bills in the 116th Congress (H.R. 925, H.R. 6139, H.R. 6201, H.R. 6379, H.R. 6559,~~
~~H.R. 6800, S. 3475, S. 3584, and S. 3677) would have required OSHA to promulgate an ETS to address COVID-19 exposure~~
~~in the workplace. The OSHA ETS provisions were not included in the COVID-19 relief legislation enacted into law (P.L.~~
~~116-127 and P.L. 116-260). There has been no legislation in the 117th Congress to require OSHA to promulgate a COVID-19~~
~~ETS.~~
~~On January 21, 2021, President Joe Biden issued an executive order directing OSHA to review whet her a COVID-19 ETS is~~
~~necessary and, if necessary, issue an ETS by March 15, 2021. To date, OSHA has not issued a COVID-19 ETS.~~
~~As of January 14, 2021, OSHA had issued citations from 315 inspections related to COVID-19 resulting in a total of~~
~~$4,034,288 in proposed civil penalties. 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 and Cory Booker have raised concerns about the low amount of penalties being assessed for COVID-19-related~~
~~violations.~~
~~Pursuant to guidance issued by OSHA on May 22, 2021, employers are not required to record or report any injuries or~~
~~illnesses caused by the COVID-19 vaccine. This guidance supersedes earlier OSHA guidance that had required employers to~~
~~record and report adverse reactions to the vaccine if vaccination was a condition of employment~~OSHA COVID-19 ETS requires health care employers to develop COVID-19 plans and protect employees from COVID-19 exposure through health screenings, personal protective equipment (PPE), building ventilation, and physical distancing and barriers. The ETS requires health care employers to remove any employees with COVID-19 from the workplace while providing them with certain benefits. Health care employers are not required to mandate that their employees receive a COVID-19 vaccine but must provide reasonable time off for employees to receive a vaccine and recover from any vaccine-related side effects. The ETS includes new COVID-19 recordkeeping and reporting requirements for health care employers and permits health care employers to forgo the medical evaluation and fit-testing requirements of OSHA’s respiratory protection standard when providing respirators to employees in certain circumstances. While the COVID-19 ETS applies only to health care employers, all employers are required to comply with the general duty clause of the OSH Act as well as existing OSHA standards on respiratory protection and recordkeeping that may apply to the current COVID-19 pandemic. Pursuant to guidance issued by OSHA on May 22, 2021, employers are not required to record or report any injuries or illnesses caused by the COVID-19 vaccine. This guidance supersedes earlier OSHA guidance that had required employers to record and report adverse reactions to the vaccine if vaccination was a condition of employment. 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 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 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. The agency that operates the state occupational safety health plan in Michigan (MIOSHA) has promulgated an ETS to specifically address COVID-19 in workplaces. In January 2021, the Virginia state plan (VOSH) promulgated a permanent standard to supersede its ETS, and in May 2021, the Oregon state plan (Oregon OSHA) replaced its ETS with a permanent standard. .

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28 Appendixes
Appendix. .................................................................................................................... 2327

Contacts
Author Information ....................................................................................................... 2529

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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 the authority to Safety and Health Administration (OSHA) of the Department of Labor 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 In addition, Section 5(a)(1) of the OSH Act, commonly referred to as the ~~General Duty Clause~~general duty clause, ,
requires that al employers under OSHA’s jurisdiction provide workplaces free of “recognized requires that al 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 the ~~General Duty Clause~~general duty clause through the issuance of abatement orders, citations, and civil monetary 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 must also cover state and local government entities, such as public schools, not state plan, it must also 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 al employers, covered by OSHA. Currently, 21 states and Puerto Rico have state plans that cover al 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 general y do not cover maritime workers and private sector workers at military bases or other and general y 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. T he provisions of the Occupational Safety and Health Act of 1970 (OSH Act) are extended to the 1 29 U.S.C. §655. T he provisions of the Occupational Safety and Health Act of 1970 (OSH Act) are extended to the
legislative branch as an employer by the Congressional Accountability Act ( P.L. 104-1). legislative branch as an employer by the Congressional Accountability Act ( P.L. 104-1).
2 29 U.S.C. §654(a)(1). 2 29 U.S.C. §654(a)(1).
3 29 U.S.C. §667. 3 29 U.S.C. §667.
4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see CRS Report 4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see CRS Report
R43969, R43969, OSHA State Plans: In Brief, with Exam ples from California and Arizona . .
5 Information on specific state plans is available from the OSHA website at https://www.osha.gov/stateplans. 5 Information on specific state plans is available from the OSHA website at https://www.osha.gov/stateplans.
6 Per Section 6(b)(1) of the OSH Act [29 §655(b)(1)], a petition may be submitted by “ an interested person, a 6 Per Section 6(b)(1) of the OSH Act [29 §655(b)(1)], a petition may be submitted by “ an interested person, a
representative of any organization of employers or employees, a nationally recognized standards-producing representative of any organization of employers or employees, a nationally recognized standards-producing
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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.7 and Health (ACCSH)—or an ad-hoc advisory committee for assistance in developing a standard.7
Notice and Comment
OSHA’s rulemaking process for the promulgation of standards is largely governed by the OSHA’s rulemaking process for the promulgation of standards is largely governed by the
provisions of the Administrative Procedure Act (APA) and Section 6(b) of the OSH Act.8 Under provisions of the Administrative Procedure Act (APA) and Section 6(b) of the OSH Act.8 Under
the APA informal rulemaking process, federal agencies, including OSHA, are required to provide the APA informal rulemaking process, federal agencies, including OSHA, are required to provide
notice of proposed rules through the publication of a Notice of Proposed Rulemaking in the notice of proposed rules through the publication of a Notice of Proposed Rulemaking in the
Federal Register and and to provide the public a period of time to comment on the proposed rules. provide the public a period of time to comment on the proposed 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 general y apply to OSHA rulemaking In addition to the APA and OSH Act, other federal laws that general y 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 Smal Business Regulatory Enforcement Fairness Act Act,13 Information Quality Act,14 and Smal 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 Services (HHS), the National Institute for Occupational Safety and organization, the Secretary of Health and Human Services (HHS), the National Institute for Occupational Safety and
Health, or a state or political subdivision.” Health, or a state or political subdivision.”
7 T he National Advisory Committee on Occupational Safety and Health (NACOSH) was established by Section 7(a) of 7 T he National Advisory Committee on Occupational Safety and Health (NACOSH) was established by Section 7(a) of
the OSH Act [29 U.S.C. §656(a)]. T he Advisory Committee on Construction Safety and Health (ACCSH) was the OSH Act [29 U.S.C. §656(a)]. T he Advisory Committee on Construction Safety and Health (ACCSH) was
established by Section 107 of the Contract Work Hours and Safety Act (P.L. 87established by 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 OSHA the authority to establish additional advisory committees. provides OSHA the authority to establish additional advisory committees.
8 T he Administrative Procedure Act (APA) is codified at 5 U.S.C. §§500 8 T he Administrative Procedure Act (APA) is codified at 5 U.S.C. §§500 -596. For detailed information on federal -596. For detailed information on federal
agency rulemaking and the APA, see CRS Report RL32240, agency rulemaking and the APA, see CRS Report RL32240, The Federal Rulem aking Process: An Overview. .
9 29 U.S.C. §655(b). 9 29 U.S.C. §655(b).
10 29 U.S.C §655(e). 10 29 U.S.C §655(e).
11 44 U.S.C. §§3501-3520. 11 44 U.S.C. §§3501-3520.
12 5 U.S.C. §§601-612. 12 5 U.S.C. §§601-612.
13 5 U.S.C. §§801-808. 13 5 U.S.C. §§801-808.
14 44 U.S.C. §3516 note. 14 44 U.S.C. §3516 note.
15 5 U.S.C. §601 note. For information on these additional laws that apply to OSHA rulemaking, see U.S. Government 15 5 U.S.C. §601 note. For information on these additional laws that apply to OSHA rulemaking, see U.S. Government
Accountability Office (GAO), Accountability Office (GAO), Workplace Safety and Health: Multiple Challenges Lengthen OSHA’s Standard Setting , ,
GAO-12-330, April 2012, Appendix II, at https://www.gao.gov/products/GAO-12-330 (hereinafter cited as GAO-12-GAO-12-330, April 2012, Appendix II, at https://www.gao.gov/products/GAO-12-330 (hereinafter cited as GAO-12-
330, 330, Workplace Safety and Health). ).
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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 review before promulgation.16 and Office of Information and Regulatory Affairs (OIRA) for review before promulgation.16
OSHA Rulemaking Time Line
OSHA rulemaking for new standards has historical y been a relatively time-consuming process. OSHA rulemaking for new standards has historical y been a relatively time-consuming process.
In 2012, at the request of Congress, the Government Accountability Office (GAO) reviewed 59 In 2012, at the request of Congress, the Government Accountability Office (GAO) reviewed 59
significant OSHA standards promulgated between 1981 (after the enactments of the Paperwork significant OSHA standards promulgated between 1981 (after the enactments of the Paperwork
Reduction Act and Regulatory Flexibility Act) and 2010.17 For these standards, OSHA’s average Reduction Act and Regulatory Flexibility Act) and 2010.17 For these standards, OSHA’s average
time between beginning formal consideration of the standard—either through publishing a time between beginning formal consideration of the standard—either through publishing a
Request for Information or 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 rulemaking activities Preliminary rulemaking activities
12-36 months 12-36 months
2 2
Developing the proposed rule Developing the proposed rule
12-36 months 12-36 months
3 3
Publishing the Notice of Proposed Rulemaking (NPRM) Publishing the Notice of Proposed Rulemaking (NPRM)
2-3 months 2-3 months
4 4
Developing and analyzing the rulemaking record, including public comments Developing and analyzing the rulemaking record, including public comments
and hearings and hearings
6-24 months 6-24 months
5 5
Developing the final rule, including Office of Information and Regulatory Developing the final rule, including Office of Information and Regulatory
Affairs (OIRA) submission Affairs (OIRA) submission
18-36 months 18-36 months
6 6
Publishing the final rule (promulgating the new standard) Publishing the final rule (promulgating the new standard)
2-3 months 2-3 months
Total estimated duration Total estimated duration
52-138 months 52-138 months
Estimated duration from NPRM to final rule Estimated duration from NPRM to final rule
26-63 months 26-63 months
Source: Congressional Research Service (CRS) with data from Occupational Safety and Health Administration Congressional Research Service (CRS) with data from Occupational Safety and Health Administration
(OSHA), Directorate of Standards and Guidance, (OSHA), Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at , October 15, 2012, at
https://www.osha.gov/OSHA_FlowChart.pdf. https://www.osha.gov/OSHA_FlowChart.pdf.

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

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

23 727 F.2d at 415, 425-427 (5th Cir. 1984). 23 727 F.2d at 415, 425-427 (5th Cir. 1984).
24 727 F.2d at 427 (5th Cir. 1984). 24 727 F.2d at 427 (5th Cir. 1984).
25 727 F.2d at 427 (5th Cir. 1984). T he ET S mandated a permissible exposure limit (PEL) for asbestos of two asbestos 25 727 F.2d at 427 (5th Cir. 1984). T he ET S mandated a permissible exposure limit (PEL) for asbestos of two asbestos
fibers per cubic centimeter of air (2.0 f/cc). fibers per cubic centimeter of air (2.0 f/cc).
26 727 F.2d at 427 (5th Cir. 1984). 26 727 F.2d at 427 (5th Cir. 1984).
27 See, for example, Centers for Disease Control and Prevention (CDC): National Institute for Occupational Safety and 27 See, for example, Centers for Disease Control and Prevention (CDC): National Institute for Occupational Safety and
Health (NIOSH), Health (NIOSH), NIOSH Alert: Preventing Lung Disease in Workers who Use or Make Flavorings, DHHS (NIOSH) , DHHS (NIOSH)
publication no. 2004publication no. 2004–-110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/. 110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/.
28 GAO-12-330, 28 GAO-12-330, Workplace Safety and Health. .
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promulgating the ETS. As shown earlier in this report, six months is wel outside of historical and promulgating the ETS. As shown earlier in this report, six months is wel 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 wel as under other relevant federal laws and comment provisions of the APA and OSH Act, as wel 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 realistical y time lines that, based on historical precedent, other provisions in the OSH Act might realistical y
require for such promulgation raises the question of whether or not OSHA could extend an ETS’s require for such promulgation raises the question of whether or not OSHA could extend an ETS’s
duration without going through the normal rulemaking process. The statute and legislative history duration without going through the normal rulemaking process. The statute and legislative history
do not clearly address this question. do not clearly address this question.
OSHA has used its ETS authority sparingly in its history and not since the asbestos ETS OSHA has used its ETS authority sparingly in its history and not since the asbestos ETS
promulgated in 1983. As shown ipromulgated in 1983. As shown in Table A-1, in the nine times OSHA has issued an ETS, the in the nine times OSHA has issued an ETS, the
courts have fully vacated or stayed the ETS in four cases and partial y vacated the ETS in one courts have fully vacated or stayed the ETS in four cases and partial y vacated the ETS in one
case.29 Of the five cases that were not chal enged or that were fully or partial y upheld by the case.29 Of the five cases that were not chal enged or that were fully or partial y upheld by the
courts, OSHA issued a permanent standard either within the six months required by the statute or 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 promulgation of 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, after which a combination of the ETS.30 Each of these cases, however, occurred before 1980, after which a combination of
additional federal laws and court decisions added additional procedural requirements to the additional federal laws and court decisions added additional procedural requirements to the
OSHA rulemaking process. OSHA did not attempt to extend the ETS’s expiration date in any of OSHA rulemaking process. OSHA did not attempt to extend the ETS’s expiration date in any of
these cases. these cases.
Although the courts have not ruled directly on an attempt by OSHA to solely extend the life of an Although the courts have not ruled directly on an attempt by OSHA to solely extend the life of an
ETS, in 1974, the U.S. Court Appeals for the Fifth Circuit held in ETS, in 1974, the U.S. Court Appeals for the Fifth Circuit held in Florida Peach Growers Ass’n v.
United States Department of Labor that OSHA was within its authority to amend an ETS without that OSHA was within its authority to amend an ETS without
going through the normal rulemaking process.31 The court stated that “it is inconceivable that going through the normal rulemaking process.31 The court stated that “it is inconceivable that
Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency
situations, intended to limit his ability to react to developments subsequent to his initial situations, intended to limit his ability to react to developments subsequent to his initial
response.”32 The court also recognized the difficulty OSHA may have in promulgating a standard response.”32 The court also recognized the difficulty OSHA may have in promulgating a standard
within six months due to the notice and comment requirements of the OSH Act, stating that in the within six months due to the notice and comment requirements of the OSH Act, stating that in the
case of OSHA seeking to amend an ETS to expand its focus, “adherence to subsection (b) case of OSHA seeking to amend an ETS to expand its focus, “adherence to subsection (b)
procedures would not be in the best interest of employees, whom the Act is designed to protect. procedures would not be in the best interest of employees, whom the Act is designed to protect.
Such lengthy procedures could al too easily consume al of the temporary standard’s six months Such lengthy procedures could al too easily consume al of the temporary standard’s six months
life.”33 life.”33
OSHA COVID-19 ETS for Health Care Employers On June 21, 2021, OSHA promulgated an ETS for the prevention of COVID-19 in health care employment.34 The ETS requires a covered employer to create a COVID-19 plan, includes
29 Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: Reproductive Hazards as an 29 Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: Reproductive Hazards as an
Example,” Example,” Boston College Environmental Affairs Law Review, vol. 12, no. 4 (August 1985), p. 673. , vol. 12, no. 4 (August 1985), p. 673.
30 For example, OSHA promulgated the Acrylonitrile (vinyl cyanide) ET S on January 17, 1978, and the permanent 30 For example, OSHA promulgated the Acrylonitrile (vinyl cyanide) ET S on January 17, 1978, and the permanent
standard on October 3, 1978, with an effective date of November 2, 1978. T he preamble to the permanent standard standard on October 3, 1978, with an effective date of November 2, 1978. T he preamble to the permanent standard
published in the published in the Federal Register does not include information on the status of the ET S during the time between its does not include information on the status of the ET S during the time between its
expiration and the promulgation of the permanent standard. OSHA, “Occupational Exposure to Acrylonitrile (Vinyl expiration and the promulgation of the permanent standard. OSHA, “Occupational Exposure to Acrylonitrile (Vinyl
Cyanide),” 43Cyanide),” 43 Federal Register 45762, October 3, 1978. 45762, October 3, 1978.
31 489 F.2d. 120 (5th Cir. 1974). 31 489 F.2d. 120 (5th Cir. 1974).
32 489 F.2d. at 127 (5th Cir. 1974). 32 489 F.2d. at 127 (5th Cir. 1974).
33 489 F.2d. at 127 (5th Cir. 1974). 33 489 F.2d. at 127 (5th Cir. 1974).
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~~OSHA Standards Related to COVID-19~~
~~Current OSHA Standards~~
~~Currently, no OSHA standard directly covers exposure to airborne or aerosol diseases in the~~
~~workplace. As a result, OSHA is limited in its ability to enforce protections for health care and~~
~~other workers who may be exposed to SARS-CoV-2, the virus that causes COVID-19.34~~
~~OSHA may enforce the General Duty Clause in the absence of a standard, if it can be determined~~
~~that an employer has failed to provide a worksite free of “recognized hazards” that are “causing~~
~~or are likely to cause death or serious physical harm” to workers.35 In addition, OSHA’s standards~~
~~for the use of personal protective equipment (PPE) may apply in cases in which workers require~~
~~eye, face, hand, or respiratory protection against COVID-19 exposure.36~~
~~As of January 14, 2021, OSHA had issued citations following 315 inspections related to COVID-~~
~~19, resulting in a total of $4,034,288 in proposed civil penalties.37 The majority of these citations~~
~~were issued to health care, nursing, and long-term care providers, including three Department of~~
~~Veterans Affairs facilities—hospitals in Indianapolis, IN, and Lyons, NJ, and a community living~~
~~center in Queens, 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—Smithfield Packaged Foods in Sioux Fal s, SD, and JBS Foods locations in Greeley,~~
~~CO, and Green Bay, WI—were cited for General Duty Clause 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 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~~
~~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 has a standard on blood-borne pathogens (29 C.F.R. §1910.1030) but does not have a standard on pathogens~~
~~transmitted by airborne droplets.~~
~~35 29 U.S.C. §654(a)(1).~~
~~36 29 C.F.R. §§1910.133, 1910.134, and 1910.138.~~
~~37 OSHA, Inspections with COVID-Related Citations, as of January 14, 2021, https://www.osha.gov/enforcement/~~
~~covid-19-data/inspections-covid-related-citations. In some cases, multiple citations were issued to the same employer.~~
~~38 OSHA has the authority to issue citations to executive branch agencies but does not have the authority to issue civil~~
~~monetary penalties to these agencies.~~
~~39 Letter from Senators Elizabeth Warren and Cory 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 “repeated.” T he maximum amounts of~~
~~OSHA penalties are subject to annual inflationary adjustments.~~
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~~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~~
~~cases in which engineering controls, such as ventilation or enclosure of hazards, are insufficient~~
~~to protect workers from breathing contaminated air.41 Surgical masks, procedure masks, and dust~~
~~masks are not considered respirators. NIOSH certifies respirators pursuant to federal~~
~~regulations.42 For nonpowered respirators, such as filtering face piece respirators commonly used~~
~~in health care and construction, NIOSH classifies respirators based on their efficiency at filtering~~
~~airborne particles and their ability to protect against oil particles. Under the NIOSH classification~~
~~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~~
~~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,~~
~~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.~~
~~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~~
~~and approved certain models of respirators for certified use beyond their manufacturer-designated~~
~~shelf lives.43~~
~~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~~
~~(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~~
~~not affect the respirator’s protection afforded the user, it may al ow unfiltered air from the user~~
~~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~~
~~by FDA.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 28, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/~~
~~release-stockpiled-N95.html.~~
~~44 Letter from RADM Denise M. Hinton, chief scientist, Food and Drug Administration (FDA), to Robert R. Redfield,~~
~~Director, CDC, March 2, 2020, at https://www.fda.gov/media/135763/download. T he list of respirators approved under~~
~~this Emergency Use Authorization (EUA) is in Appendix B to this letter, updated at https://www.fda.gov/media/~~
~~135921/download.~~
~~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 Conf irm ed
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~~OSHA: ETS and COVID-19~~

~~guidelines for control of infectious agents in health care settings, which required the use of~~
~~respirators for treatment of known or suspected cases.46 CDC states that respirators should be~~
~~prioritized for use in medical procedures likely to generate respiratory aerosols. Before this~~
~~interim guidance was released, Representative Bobby Scott, chair of the House Committee on~~
~~Education and Labor, and Representative Alma Adams, chair of the Subcommittee on Workforce~~
~~Protections, sent a letter to then-Secretary of Health and Human Services (HHS) Alex Azar~~
~~expressing their opposition to this change in the interim standard.47~~
~~Medical Evaluation and Fit Testing~~
~~The OSHA respiratory protection standard requires that the employer provide a medical~~
~~evaluation to the employee to determine if the employee is physiological y able to use a~~
~~respirator. This medical evaluation must be completed before any fit testing. For respirators~~
~~designed to fit tightly against the face, the specific type and model of respirator that an employee~~
~~is to use must be fit tested in accordance with the procedures provided in Appendix A of the~~
~~OSHA respiratory protection standard to ensure there is a complete seal around the respirator~~
~~when worn.48 Once an employee has been fit tested for a respirator, he or she is required to be fit~~
~~tested annual y or whenever the model of respirator, but not the actual respirator itself, is~~
~~changed. Each time an individual uses a respirator, he or she is required to perform a check of the~~
~~seal of the respirator to his or her face in accordance with the procedures provided in Appendix B~~
~~of the standard.49 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~~
~~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 five 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 March 10, 2020, at https://www.cdc.gov/
~~coronavirus/2019-ncov/infection-control/control-recommendations.html.~~
~~46 CDC,~~ ~~2007 Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Health care~~
~~Settings, updated July 2019, at https://www.cdc.gov/infectioncontrol/pdf/guidelines/isolation-guidelines-H.pdf.~~
~~47 Letter from Representative Robert C. “Bobby” Scott, chairman, House Committee on Education and Labor, and~~
~~Representative Alma S. Adams, chair, Subcommitt ee on Workforce Protections, to T he Honorable Alex M. Azar II,~~
~~Secretary of HHS, March 9, 2020, at https://edlabor.house.gov/imo/media/doc/~~
~~Azar%20Redfield%20Letter_SIGNED%202020-03-09.pdf.~~
~~48 29 C.F.R. §1910.134 Appendix A. Powered air purifying respirators (PAPR) that do not require a seal to the user’s~~
~~face do not need to be fit tested.~~
~~49 29 C.F.R. §1910.134 Appendix B.~~
~~50 OSHA,~~ ~~Temporary Enforcement Guidance—Health Care 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; and OSHA~~ ~~Expanded Tem porary~~
~~Enforcem ent Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the~~
~~Coronavirus Disease 2019 (COVID-19) Pandem ic, April 8, 2020, at https://www.osha.gov/memos/2020-04-08/~~
~~expanded-temporary-enforcement-guidance-respiratory-protection-fit-testing-n95.~~
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~~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~~
~~is not damaged, soiled, or contaminated (e.g., with blood, oil, or paint);51~~
~~3. Employers may permit the use of respirators not certified by NIOSH, but~~
~~approved under standards used by the following countries or jurisdictions, in~~
~~accordance with the protection equivalency tables provided in Appendices A and~~
~~B of the enforcement guidance document:~~
~~ Australia,~~
~~ Brazil,~~
~~ European Union,~~
~~ Japan,~~
~~ Mexico,~~
~~ People’s Republic of China, and~~
~~ Republic of Korea.52~~
~~4. Employers may permit the re-use of respirators decontaminated in accordance~~
~~with CDC decontamination guidance;53 and~~
~~5. Employers may permit the use of NIOSH-approved tight-fitting PAPRs in place~~
~~of respirators when respirator fit-testing is not feasible due to supply issues.54~~
~~OSHA Infectious Disease Standard Rulemaking~~
~~In 2010, OSHA published a Request for Information in the Federal Register seeking public~~
~~comments on strategies to control exposure to infectious diseases in health care workplaces.55~~
~~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~~
~~spring 2017, this rulemaking has been listed as a “long-term action” in the Department of Labor’s~~
~~semiannual regulatory agenda.~~

~~51 OSHA,~~ ~~Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease~~
~~2019 (COVID-19) Pandem ic, April 3, 2020, at https://www.osha.gov/memos/2020-04-03/enforcement-guidance-~~
~~respiratory-protection-and-n95-shortage-due-coronavirus. Under this guidance, employers are required to address in~~
~~their written respiratory protection plans when respirators are contaminated and not available for use or reuse.~~
~~52 OSHA,~~ ~~Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other~~
~~Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandem ic, April 3, 2020, at~~
~~https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under.~~
~~53 OSHA,~~ ~~Enforcement Guidance on Decontamination of Filtering Facepiece Respirators in Healthcare During the~~
~~Coronavirus Disease 2019 (COVID-19) Pandem ic, April 24, 2021, at https://www.osha.gov/memos/2020-04-24/~~
~~enforcement -guidance-decontamination-filtering-facepiece-respirators-healthcare; and CDC,~~ ~~Im plem enting Filtering~~
~~Facepiece Respirator (FFR) Reuse, Including Reuse after Decontam ination, When There Are Known Shortages of N95~~
~~Respirators, October 19, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontamination-~~
~~reuse-respirators.html.~~
~~54 OSHA,~~ ~~Temporary Enforcement Guidance—Tight-Fitting Powered Air Purifying Respirators (PAPRs) Used During~~
~~the Coronavirus Disease 2019 (COVID-19) Pandem ic, October 2, 2021, at https://www.osha.gov/memos/2020-10-02/~~
~~temporary-enforcement-guidance-tight-fitting-powered-air-purifying-respirators.~~
~~55 OSHA, “Infectious Diseases,” 75 Federal Register 24835, May 6, 2010.~~
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~~link to page 28~~ ~~OSHA: ETS and COVID-19~~

~~Executive Order Requiring Updated OSHA Guidance and~~
~~Consideration of an ETS~~
~~On January 21, 2021, President Joe Biden issued an executive order concerning COVID-19 in the~~
~~workplace.56 This executive order requires that OSHA take the following actions:~~
~~ in consultation with other agencies, issue revised COVID-19 guidance within~~
~~two weeks;~~
~~ review the necessity of a COVID-19 ETS and, if necessary, issue an ETS by~~
~~March 15, 2021;~~
~~ review OSHA enforcement related to COVID-19 and identify changes that could~~
~~be made to better protect workers and ensure equity in enforcement;~~
~~ launch a national enforcement program to focus on violations that put the largest~~
~~number of workers at serious risk of COVID-19 or violate anti-retaliation~~
~~principles;~~
~~ conduct a multilingual outreach campaign in consultation with labor unions,~~
~~community groups, and industries to inform workers of their rights under current~~
~~law, with an emphasis on communities hit hardest by the COVID-19 pandemic;~~
~~ coordinate with state plans to ensure that workers covered by such plans are~~
~~adequately protected from COVID-19 consistent with any OSHA guidance or~~
~~ETS; and~~
~~ consult with states that do not operate state plans to improve protections for state~~
~~and government employees.~~
~~The executive order also includes requirements for the Mine Safety and Health Administration to~~
~~determine the necessity of an ETS for mineworkers and, if necessary, issue such an ETS as soon~~
~~as practicable. The order also directs the heads of other federal agencies to explore ways to~~
~~protect workers not covered by the OSH Act from COVID-19 in the workplace.~~
~~State Occupational Safety and Health Standards~~
~~Although no OSHA standard specifical y covers aerosol or airborne disease transmission or~~
~~COVID-19, two states, California and Michigan, have issued temporary standards under their~~
~~state plans that directly address COVID-19 exposure. In addition, Oregon and Virginia have~~
~~issued permanent COVID-19 standards, and California has had a permanent state standard~~
~~covering aerosol transmission of diseases since 2009. Table A-2 in the Appendix to this report~~
~~provides a summary of these state standards.~~
~~California: Cal/OSHA Aerosol Transmissible Disease Standard~~
~~The California Division of Occupational Safety and Health (Cal/OSHA), under its state plan,~~
~~promulgated its aerosol transmissible disease (ATD) standard in 2009.57 The ATD standard covers~~

~~56 Executive Order, “Executive Order on Protecting Worker Health and Safety,” January 21, 2021,~~
~~https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/executive-order-protecting-worker-health-~~
~~and-safety/.~~
~~57 Aerosol Transmissible Diseases, Cal. Code Regs. tit. 8, §5199, available at https://www.dir.ca.gov/title8/5199.html.~~
~~T he California state plan covers all state and local government agencies and all private sector workers in the state, with~~
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~~most health care workers (including emergency medical services and police transport or detention~~
~~of infected persons) and laboratory workers, as wel as workers in correctional facilities,~~
~~homeless shelters, and drug treatment programs. Under the ATD standard, SARS-CoV-2, the~~
~~virus that causes COVID-19, is classified as a disease or pathogen requiring airborne isolation.~~
~~This classification subjects the virus to stricter control standards than diseases requiring only~~
~~droplet precautions, such as seasonal influenza.58 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 exposed employees, including post-exposure~~
~~evaluation of employees and treatment and vaccines, if available;~~
~~ the removal, without penalty to the employees, of exposed employees,~~
~~ specific requirements for laboratory workers, and~~
~~ PPE requirements.~~
~~Cal/OSHA Aerosol Transmissible Disease PPE Requirements~~
~~The Cal/OSHA ATD standard requires that employers provide employees PPE, including gloves,~~
~~gowns or coveral s, eye protection, and respirators certified by NIOSH at least at the N95 level~~
~~whenever workers~~
~~ 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;~~
~~ 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;~~
~~ are present during aerosol generating procedures on cadavers of cases or~~
~~suspected cases;~~
~~ transport a case or suspected case within a facility or within a vehicle when the~~
~~patient is not masked; or~~
~~ are working with a viable virus in the laboratory.~~
~~In addition, a powered air purifying respirator (PAPR) with a high-efficiency particulate air~~
~~(HEPA) filter must be used whenever a worker performs a high-hazard procedure on a known or~~
~~suspected COVID-19 case.59 High-hazard procedures are those in which “the potential for being~~
~~exposed to aerosol transmissible pathogens is increased due to the reasonably anticipated~~
~~generation of aerosolized pathogens”—they include intubation, airway suction, and caring for~~

~~the exception of maritime workers; workers on military bases and in national parks, monuments, memorials, and~~
~~recreation areas; workers on federally recognized Native American reservations and trust lands; and U.S. Postal Service~~
~~contractors.~~
~~58 Cal. Code Regs. tit. 8, §5199 Appendix A.~~
~~59 A PAPR uses a mechanical device to draw in room air and filter it before expelling that air over the user’s face. In~~
~~general, PAPRs do not require a tight seal to the user’s face and do not need to be fit tested.~~
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~~patients on positive pressure ventilation.60 Emergency medical services (EMS) workers may use~~
~~N100, R100, or P100 respirators in place of PAPRs.~~
~~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.61 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.62 This ETS~~
~~became effective on November 30, 2020, and is to remain in effect for 180 days and can be~~
~~extended for up to two periods of 90 days each. California Executive Orders N-40-20 and N-71-~~
~~20 each extended the ETS by 60 days such that the ETS now expires on September 30, 2021. 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. The~~
~~Cal/OSHA ETS includes specific provisions that apply to employer-provided housing and~~
~~transportation.~~
~~Michigan: MIOSHA COVID-19 Emergency Rules~~
~~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),~~
~~promulgated emergency rules, with a duration of six months, to address workplace exposure to~~
~~COVID-19. On April 10, 2021, the MIOSHA emergency rules were extended for an additional~~
~~six months through October 14, 2021. These rules were amended, effective May 24, 2021, based~~
~~on updated CDC guidance, and the amended rules wil remain in effect through October 14,~~
~~2021.63 The Michigan emergency rules apply to al employers covered by the state plan.~~
~~Oregon: Oregon OSHA COVID-19 Permanent~~
~~Administrative Rules~~
~~On November 6, 2020, the Oregon Department of Consumer and Business Services, which~~
~~operates Oregon’s state plan (Oregon OSHA) adopted temporary administrative rules to~~
~~specifical y address COVID-19 exposures in the workplace. These rules were reissued to correct~~

~~60 Cal. Code Regs. tit. 8, §5199(b).~~
~~61 California Division of Occupational Safety and Health (Cal/OSHA),~~ ~~Cal/OSHA Interim Guidance on COVID-19 for~~
~~Health Care Facilities: Severe Respirator Supply Shortages, August 6, 2020, at https://www.dir.ca.gov/dosh/~~
~~coronavirus/Cal-OSHA-Guidance-for-respirator-shortages.pdf.~~
~~62 COVID-19 Prevention, Cal. Code Regs. tit. 8, §§3205-3205.4, available at https://www.dir.ca.gov/dosh/coronavirus/~~
~~ET S.html.~~
~~63 Emergency Rules: Coronavirus 2019 (COVID-19), available at https://www.michigan.gov//documents/leo/~~
~~Final_MIOSHA_Rules_705164_7.pdf. T he 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~~
~~businesses owned or operated by tribal members at Indian reservations, and aircraft cabin crew members.~~
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~~“scriveners’ errors” on December 16, 2020, and were set to expire on May 4, 2021. On May 4,~~
~~2021, permanent administrative rules became effective.64 These permanent rules wil remain in~~
~~effect until repealed or revised by Oregon OSHA. However, the rules require Oregon OSHA to~~
~~consult with state agencies and other stakeholders to determine when the permanent rules can be~~
~~amended or repealed, with the first of these consultations to occur no later than July 2021. After~~
~~the first consultations, ongoing consultations are required every two months until the rules are~~
~~repealed.~~
~~In addition to rules that apply to al employers, the appendices to the Oregon OSHA rules also~~
~~include mandatory guidance that apply to the following industries and employers:~~
~~ restaurants, bars, brewpubs, and public tasting rooms at breweries, wineries, and~~
~~distil eries;~~
~~ retail stores;~~
~~ personal services providers such as hair salons;~~
~~ construction operations;~~
~~ transit agencies;~~
~~ professional and Division I, PAC-12, Big Sky, and West Coast Conference sports;~~
~~ fitness-related organizations;~~
~~ K-12 educational institutions (public or private);~~
~~ child care and early education providers;~~
~~ veterinary clinics;~~
~~ fire and emergency medical services;~~
~~ law enforcement; and~~
~~ jails and custodial institutions.~~
~~Virginia: VOSH COVID-19 Permanent Standard~~
~~On July 15, 2020, the Virginia Safety and Health Codes Board adopted an ETS to specifical y~~
~~protect employees from exposure to SARS-CoV-2, the virus that causes COVID-19.65 On January~~
~~12, 2021, the Virginia Safety and Health Codes Board voted to promulgate a permanent COVID-~~
~~19 standard that supersedes the ETS.66~~

~~64 Addressing COVID-19 Workplace Risks, Or. Admin. R. 437-001-0744, available at https://osha.oregon.gov/~~
~~OSHARules/div1/437-001-0744.pdf. T he Oregon state plan covers all state and local government agencies and all~~
~~private sector workers in the state, with the exception of maritime workers, private sector establishments within the~~
~~boundaries of Indian reservations and federal military reservations, employment at Crater Lake National Park and the~~
~~U.S. Department of Energy Albany Research Center, U.S. Postal Service contractors, and aircraft cabin crew members~~
~~during flight operations.~~
~~65 Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220, available~~
~~at https://www.doli.virginia.gov/wp-content/uploads/2020/07/RIS-filed-RT D-Final-ET S-7.24.2020.pdf. T his ET S was~~
~~effective upon publication in a Richmond, VA, newspaper during the week of July 27, 2020.~~
~~66 Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220,~~
~~available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-~~
~~Prevention-of-COVID-19-16VAC25-220-1.15.2021.pdf. T his permanent standard is effective on January 27, 2021.~~
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~~This ETS, promulgated under Virginia’s state occupational safety and health plan (VOSH), was~~
~~the first state standard to specifical y address COVID-19 in the workplace.67 As an ETS, the~~
~~VOSH standard was to expire within six months of its effective date, upon expiration of the~~
~~governor’s state of emergency, when superseded by a permanent standard, or when repealed by~~
~~the Virginia Safety and Health Codes Board, whichever came first. The VOSH permanent~~
~~standard applies to al state and local government agencies and al covered private sector~~
~~employees in the state and does not contain additional requirements for any specific industries.~~
~~Among the concerns raised by groups opposed to the VOSH permanent standard was that,~~
~~because the standard is permanent, employers would be required to comply with the COVID-19~~
~~prevention requirements even after the COVID-19 pandemic has ended.68 While the standard is~~
~~permanent, a provision in the standard requires that within 14 days of expiration of the governor’s~~
~~COVID-19 state of emergency and the commissioner of health’s COVID-19 declaration of public~~
~~emergency, the Virginia Safety and Health Codes Board must meet to determine if there is a~~
~~continued need for the standard.~~
~~Congressional Activity in the 116th Congress to~~
~~Require an OSHA Emergency Temporary Standard~~
~~on COVID-19~~
~~On March 5, 2020, Representative Bobby Scott, chair of the House Committee on Education and~~
~~Labor, and Representative Alma Adams, chair of the Subcommittee on Workforce Protections,~~
~~sent a letter to then-Secretary of Labor Eugene Scalia cal ing on OSHA to promulgate an ETS to~~
~~address COVID-19 exposure among health care workers.69 This letter followed a January 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.70 Senator~~
~~Patty Murray, then-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~~
~~cal ing for an OSHA ETS.71~~
~~In addition, in March 2020, David Michaels, who served as the Assistant Secretary of Labor for~~
Occupational Safety and Health during the Obama Administration, wrote an op-ed in The Atlantic

~~67 T he Virginia state plan covers all state and local government agencies and all private sector workers in th e state, with~~
~~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, workers at the U.S. Department of Energy’s Southeastern Power~~
~~Administration Kerr-Philpott System, and aircraft cabin crew members.~~
~~68 See, for example, letter from Hobey Bauhan, President, Virginia Poultry Federation, to Princy Doss, Director of~~
~~Policy, Planning and Public Information, and Jay Withrow, Director, Division of Legal Support, Virginia Department~~
~~of Labor and Industry, January 7, 2021, http://www.doli.virginia.gov/wp-content/uploads/2021/01/Virginia-Poultry-~~
~~Federation-Comments-on-Permanent-DOLI-Standard-1.7.21.pdf.~~
~~69 Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams,~~
~~chair, Subcommittee on Worker Protections, to T he Honorable Eugene Scalia, Secretary of Labor, March 5, 2020, at~~
~~https://edlabor.house.gov/imo/media/doc/2020-03-05%20OSHA%20ET S%20Letter.pdf.~~
~~70 Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams,~~
~~chair, Subcommittee on Worker Protections, to T he Honorable Eugene Scalia, Secretary of Labor, January 30, 2020, at~~
~~https://edlabor.house.gov/imo/media/doc/2020-01-30%20RCS%20to%20DOL%20Corona%20Letter_SIGNED1.pdf .~~
~~71 Letter from Senator Patty Murray, ranking member, Senate Committee on Health, Education, Labor, and Pensions,~~
~~Senator Robert Menendez, and Senator T ammy Baldwin, et al. to T he Honorable Eugene Scalia, Secretary of Labor,~~
~~March 9, 2020, at https://www.baldwin.senate.gov/imo/media/doc/20200309%20OSHA%20ET S%20Letter.pdf.~~
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~~cal ing on OSHA to promulgate a COVID-19 ETS.72 On March 6, 2020, the AFL-CIO and 22~~
~~other unions petitioned OSHA for an ETS on infectious diseases that would cover al workers~~
~~with potential exposures.73 OSHA formal y denied the AFL-CIO petition on May 29, 2020,~~
~~claiming that an ETS is not necessary to protect employees from infectious diseases general y, or~~
~~from COVID-19.74 National Nurses United submitted a similar petition requesting that OSHA~~
~~promulgate an ETS based largely on the Cal/OSHA ATD standard.75 On May 4, 2020, the Center~~
~~for Food Safety and Food Chain Workers Al iance submitted a petition requesting that OSHA~~
~~promulgate an ETS to protect meat and poultry processing workers from COVID-19 exposure in~~
~~the workplace.76 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.77 The~~
~~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~~
~~Care Worker Protection Act of 2020. This bil would have required OSHA to promulgate a~~
~~COVID-19 ETS within one month of enactment. The ETS would have been required to cover~~
~~health care workers and any workers in sectors determined by the CDC or OSHA to be at an~~
~~elevated risk of COVID-19 exposure. The ETS would have been required to include an exposure~~
~~control plan provision and be, at a minimum, based on CDC’s 2007 guidance and any updates to~~
~~this guidance. The ETS would also have been required to provide no less protection than any state~~
~~standard on novel pathogens, thus requiring OSHA to include the elements of the Cal/OSHA ATD~~
~~standard and ETS, the MIOSHA emergency rule, the Oregon OSHA temporary administrative~~
~~rules, and the VOSH COVID-19 standard in this ETS. Title II of the bil provided that hospitals~~
~~and skil ed nursing facilities that receive Medicare funding and that are owned by state or local~~
~~government units and not subject to state plans would be required to comply with the ETS.~~
~~Similar provisions are included in S. 3475.~~
~~P.L. 116-127, the Families First Coronavirus Response Act~~
~~The provisions of H.R. 6139 were included as Division C of H.R. 6201, the Families First~~
~~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~~

~~72 David Michaels, “What T rump Could Do Right Now to Keep Workers Safe From the Coronavirus,” The Atlantic,~~
~~March 2, 2020, at https://www.theatlantic.com/ideas/archive/2020/03/use-osha-help-stem-covid-19-pandemic/607312/.~~
~~73 Letter from Richard L. T rumka, president, AFL-CIO, to T he Honorable Eugene Scalia, Secretary of Labor, March 6,~~
~~2020, at https://aflcio.org/statements/petition-secretary-scalia-osha-emergency-temporary-standard-infectious-disease.~~
~~74 Letter from Loren Sweatt, Principal Deputy Assistant Secretary of Labor, to Richard L. T rumka, president, AFL -~~
~~CIO, May 29, 2020.~~
~~75 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.~~
~~76 Center for Food Safety and Food Chain Workers Alliance,~~ ~~Rulemaking Petition to the United States Department of~~
~~Labor, Occupational Safety and Health Adm inistration~~ ~~, May 4, 2020, at https://www.centerforfoodsafety.org/files/~~
~~2020-05-04-osha-ets-petition_58890.pdf.~~
~~77 In re: American Federation of Labor and Congress of Industrial Organizations, D.C. Cir., No. 19 -1158, May 18,~~
~~2020. T his petition was filed in the U.S. Court of Appeals as Section 6(f) of the OSH Act [29 U.S.C. §655(f)] grant s~~
~~this court exclusive jurisdiction to provide judicial review of OSHA standards.~~
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~~the bil .78 Specifical y, the AHA opposed the requirement that the ETS be based on the CDC’s~~
~~2007 guidance. The AHA stated that unlike severe acute respiratory syndrome (SARS), which~~
~~was transmitted through the air, COVID-19 transmission is through droplets and surface contacts.~~
~~Thus, the requirement of the 2007 CDC guidance that N95 respirators, rather than surgical masks,~~
~~be used for patient contact is not necessary to protect health care workers from COVID-19, and~~
~~the use of surgical masks is consistent with World Health Organization guidance. The AHA also~~
~~claimed that shortages of available respirators could reduce the capacity of hospitals to treat~~
~~COVID-19 patients, due to a lack of respirators for staff. The OSHA ETS provisions were not~~
~~included in the version of the legislation that was passed by the House and the Senate and signed~~
~~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~~
~~the House on March 23, 2020, included the requirement that OSHA promulgate an ETS on~~
~~COVID-19 within seven days of enactment and a permanent COVID-19 standard within 24~~
~~months of enactment to cover health care workers, firefighters and emergency response workers,~~
~~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 have amended the OSH Act, for the~~
~~purposes of the 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, the COVID-19 Workers First Protection Act of 2020, as introduced in the~~
~~Senate.~~
~~This legislation would have specifical y provided that the ETS would remain in force until the~~
~~permanent standard is promulgated and would explicitly exempt the ETS from the Regulatory~~
~~Flexibility Act, Paperwork Reduction Act, and Executive Order 12866. OSHA would have been~~
~~granted 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 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~~
~~and permanent standard under H.R. 6379 would have been required to include an exposure~~
~~control plan and provide no less protection than any state standard on novel pathogens, thus~~
~~requiring OSHA to include the elements of the Cal/OSHA ATD standard and ETS, the VOSH~~
~~COVID-19 standard, and the MIOSHA emergency rules in this ETS and permanent standard.~~
~~Although the ETS provisions in H.R. 6139 and H.R. 6201 would have required that the ETS be~~
~~based on the 2007 CDC guidance, specific reference to the 2007 guidance was not included in~~
~~this legislation. Rather, under H.R. 6379, the ETS and permanent standard would have had to~~
~~incorporate, as appropriate, “guidelines issued by the Centers for Disease Control and Prevention,~~
~~and the National Institute for Occupational Safety and Health, which are designed to prevent the~~
~~transmission of infectious agents in health care settings” and scientific research on novel~~
~~pathogens.~~
~~States with occupational safety and health plans would have been required to adopt the ETS, or~~
~~their own ETS at least as effective as the federal ETS, no more than 14 days after the legislation’s~~
~~enactment.~~

~~78 Emily Kopp, “Hospitals want to kill a policy shielding nurses from COVID-19 because there aren’t enough masks,”~~
Roll Call, March 3, 2020, at https://www.rollcall.com/2020/03/13/hospitals-want -to-kill-a-policy-shielding-nurses-
~~from-covid-19-because-there-arent-enough-masks/. T his alert is available to American Hospital Association (AHA)~~
~~members on the AHA website at https://www.aha.org.~~
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~~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~~
~~Representative Bobby Scott on April 21, 2020. This legislation included the ETS and permanent~~
~~standard provisions of Division D of H.R. 6379 and S. 3584 and would have required that these~~
~~standards cover health care workers, emergency medical responders, and “other employees at~~
~~occupational risk” of COVID-19 exposure. This legislation also added two provisions that would~~
~~clarify the requirements for employers to record work-related COVID-19 infections and~~
~~strengthen the protections against retaliation and discrimination offered to whistleblowers.~~
~~Similar provisions were included in S. 3677 and were incorporated into H.R. 6800, the Heroes~~
~~Act, 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~~
~~injuries and il nesses in accordance with OSHA regulations.79 OSHA’s reporting and~~
~~recordkeeping regulations require that employers with 10 or more employees must keep records~~
~~of work-related injuries and il nesses that result in lost work time for employees or that require~~
~~medical care beyond first aid.80 Employers must also report to OSHA, within 8 hours, any~~
~~workplace fatality, and within 24 hours, any injury or il ness that results in in-patient~~
~~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~~
~~exempt from the recordkeeping requirements but not the requirement to report to OSHA serious~~
~~injuries, il nesses, and deaths.81 Offices of physicians, dentists, other health practitioners, and~~
~~outpatient medical clinics are included in the industries that are exempt from the recordkeeping~~
~~requirements.~~
~~OSHA regulations require the employer to determine if an employee’s injury or il ness is related~~
~~to his or her work and thus subject to the recordkeeping requirements.82 The regulations provide a~~
~~presumption that an injury or il ness that occurs in the workplace is work-related and recordable,~~
~~unless one of the exemptions provided in the regulations applies.83 One of the listed exemptions is~~
~~“The il ness is the common cold or flu (Note: contagious diseases such as tuberculosis,~~
~~brucel osis, hepatitis A, or plague are considered work-related if the employee is infected at~~
~~work).”84~~
~~Because of the nature of COVID-19 transmission, which can occur in the community as wel as~~
~~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~~
~~if an employee’s COVID-19 is subject to the recordkeeping requirements.~~

~~79 29 U.S.C. §§657(c) and 673(a).~~
~~80 OSHA’s reporting and recordkeeping regulations are at 29 C.F.R. Part 1904.~~
~~81 T he list of exempted industries is at 29 C.F.R. Subpart B, Appendix A. States with state occupational safety and~~
~~health plans may require employers in these exempted industries t o comply with the recordkeeping requirements.~~
~~82 29 C.F.R. §1904.5.~~
~~83 29 C.F.R. §1905.5(a).~~
~~84 29 C.F.R. §1904.5(b)(2)(viii).~~
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~~Initial OSHA Recordkeeping Guidance~~
~~On April 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be~~
~~treated under the recordkeeping requirements.85 This guidance stated that COVID-19 cases were~~
~~recordable if they were work-related.~~
~~Under this guidance, employers in the following industry groups were to fully comply with the~~
~~recordkeeping regulations, including the requirement to determine if COVID-19 cases were~~
~~work-related:~~
~~ health care;~~
~~ emergency response, including firefighting, emergency medical services, and law~~
~~enforcement; and~~
~~ correctional institutions.~~
~~For al other employers, OSHA required employers to determine if COVID-19 cases were work-~~
~~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-~~
~~related. This could have included, for example, a number of cases developing~~
~~among workers who worked closely together without an alternative explanation.~~
~~2. The evidence of work-relatedness was reasonably available to the employer. For~~
~~purposes of this guidance, examples of reasonably available evidence included~~
~~information given to the employer by employees, as wel as information that an~~
~~employer learned regarding its employees’ health and safety in the ordinary~~
~~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.86~~
~~This new guidance rescinds the previous guidance issued by OSHA on April 10, 2020. Under this~~
~~new guidance, al 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~~
~~employer has made a reasonable determination that a case of COVID-19 was work-related,~~
~~OSHA says it wil consider the following factors:~~
~~ the reasonableness of the employer’s investigation of the COVID-19 case and its~~
~~transmission to the employee;~~
~~ the evidence that is available to the employer; and~~
~~ 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~~
~~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.~~

~~85 OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), April 10, 2020, at~~
~~https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.~~
~~86 OSHA, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), May 19,~~
~~2020, at https://www.osha.gov/memos/2020-05-19/revised-enforcement -guidance-recording-cases-coronavirus-~~
~~disease-2019-covid-19.~~
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~~Injuries and Illnesses Caused by the COVID-19 Vaccine Are Not Subject to~~
~~Recording and Reporting Requirements~~
~~OSHA guidance, issued in the form of questions and answers on the OSHA COVID-19~~
~~Frequently Asked Questions webpage on May 22, 2021, provides that the agency wil not require~~
~~any employers to record or report any injuries or il ness resulting from the COVID-19 vaccine~~
~~even if vaccination is a condition of employment. This guidance is to remain in effect through~~
~~May 2022.87~~
~~H.R. 6559~~
~~H.R. 6559 would have required that the ETS and permanent standard established pursuant to the~~
~~legislation include the requirement for the recording and reporting of al COVID-19 cases in~~
~~accordance with OSHA regulations in place at the time of enactment. By referencing the~~
~~regulations in place, this provision would have served to supersede OSHA’s guidance from April~~
~~10, 2020, and apply the requirement, currently provided in the guidance effective May 26, 2020,~~
~~to determine the work-relatedness of COVID-19 cases to al employers covered by the~~
~~recordkeeping regulations.~~
~~Whistleblower Protections~~
~~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.88 Commonly referred to as the~~
~~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;~~
~~ causes an OSHA proceeding, such as an investigation, to be instituted;~~
~~ 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~~
~~afforded by the OSH Act.89~~
~~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~~
~~material safety data sheets or other information required to be made available by the employer;~~
~~and the right to report a work-related injury, il ness, or death to OSHA.90 In limited cases, the~~
~~employee has the right to refuse to work if conditions reasonably present a risk of serious injury~~
~~or death and there is not sufficient time to eliminate the danger through other means.91~~

~~87 OSHA, COVID-19: Frequently Asked Questions, at https://www.osha.gov/coronavirus/faqs#vaccine. T his guidance~~
~~supersedes previous guidance, issued on April 21, 2021, that required employers to record and report injuries and~~
~~illnesses from the COVID-19 vaccine if the employer required the vaccine as a condition of employment .~~
8834 OSHA, “Occupational Exposure to COVID-19; Emergency T emporary Standard,” 86 Federal Register 32376, June 21, 2021. Congressional Research Service 6 OSHA: ETS and COVID-19 provisions for the prevention of COVID-19 in the workplace, requires new recordkeeping in COVID-19 cases, and (in certain circumstances) permits employers to forgo the medical evaluation and fit-testing requirements of the OSHA respiratory protection standard. The ETS became effective with its publication in the Federal Register, with covered employers required to comply with al provisions of the ETS—with the exceptions of the physical distancing, building ventilation, training, and mini-respiratory-protection provisions—by July 6, 2021. Covered employers must comply with the physical distancing, building ventilation, training, and mini-respiratory-protection provisions by July 21, 2021. While the Federal Register announcement does not specify a specific duration for the COVID-19 ETS, per the OSH Act, an ETS is effective until replaced by a permanent standard within six months. The publication of the COVID-19 ETS in the Federal Register also included a request for comments on the ETS and on whether the ETS should become a permanent standard. In the preamble to the ETS, OSHA states that al state plans must adopt the ETS within 30 days of its publication and notify OSHA within 15 days of the actions they plan to take to adopt the ETS.35 The ETS is not retroactive. Petitions for Judicial Review On June 24, 2021, National Nurses United filed a petition for judicial review of the COVID-19 ETS in the U.S. Court of Appeals for the Ninth Circuit.36 Also on June 24, 2021, the United Food and Commercial Workers (UFCW) and AFL-CIO filed a petition for judicial review of the COVID-19 ETS in the U.S. Court of Appeals for the District of Columbia Circuit. In its petition the UFCW and AFL-CIO state as grounds for review that the ETS “fails to protect employees outside the healthcare industry who face a similar grave danger from occupational exposure to COVID-19.”37 On July 8, 2021, National Nurses United voluntarily withdrew its petition for judicial review of the COVID-19 ETS. Justification for the COVID-19 ETS In the preamble to the ETS published in the Federal Register, OSHA provides a justification for the ETS by addressing the requirements in the OSH Act that employees are exposed to grave danger from exposure to SARS-CoV-2 and that an ETS is necessary to protect employees from such danger. Grave Danger Determination In its justification for a COVID-19 ETS for health care employment, OSHA states that the agency “has determined that healthcare employees face a grave danger from the new hazard of workplace exposures to SARS-CoV-2 except under a limited number of situations (e.g., a fully vaccinated workforce in a breakroom).”38 OSHA’s determination that COVID-19 meets the grave danger standard required for an ETS rests on evidence and research on the following factors: 35 OSHA, “Occupational Exposure to COVID-19,” p. 32560. 36 National Nurses United v. OSHA, Docket No. 21-71142 (9th Cir. June 24, 2021). 37 United Food and Commercial Workers and American Federation of Labor and Congress of Industrial Organizations v. OSHA, et al., Docket No. 21-1143 (D.C. Cir. June 24, 2021). 38 OSHA, “Occupational Exposure to COVID-19,” p. 32381. Congressional Research Service 7 OSHA: ETS and COVID-19  the health consequences of COVID-19, including mortality and short-term and long-term health consequences from COVID-19, even in cases determined by the Centers for Disease Control and Prevention (CDC) to be “mild;”  the elevated risk of COVID-19 transmission in the workplace due to common elements of workplaces such as shared work spaces; and  the risk of COVID-19 transmission in health care settings where known or suspected infectious patients are receiving medical treatment.39 Necessity Determination Inadequacy of Current Standards and Guidance OSHA states that an ETS is necessary as it is the only means the agency has to control COVID-19 exposure in health care workplaces. The agency states that current OSHA standards—such as those covering respiratory protection, personal protective equipment (PPE), sanitation, and hazard communication—do not provide sufficient protection to health care employees exposed to known or suspected infectious persons. OSHA also states that its own guidance and that provided by other agencies such as the CDC do not provide sufficient protections to employers as such guidance is voluntary and not enforceable. OSHA claims that there is a need for a uniform set of requirements for health care employers in al states regardless of whether the state has adopted its own COVID-19 standards and cites a petition filed by the occupational safety consulting firm ORCHSE Strategies requesting an ETS as evidence that some employers favor the uniform set of national requirements provided by an ETS.40 Inadequacy of the General Duty Clause OSHA asserts that the general duty clause provides inadequate protections to employees. Unlike the ETS, the general duty clause does not contain specific requirements for employers. In addition, OSHA claims that there is a “heavier” burden of proof that the agency must meet for enforcement of the general duty clause versus enforcement of a standard or ETS.41 Enforcement of the general duty clause is also limited by the inability to require specific hazard abatements and the inability to assess higher civil monetary penalties for egregious or wil ful violations. OSHA also states that the general duty clause does not provide complete protection at multi-employer worksites, such as hospitals, where several employers may control workplace safety conditions and thus may be liable for violations. Vaccines and the Need for an ETS OSHA argues in the preamble to its ETS that the development, availability, and overal success of the COVID-19 vaccines in the United States do not obviate the need for an ETS but rather serve as evidence of the need for an ETS. OSHA states that it has a statutory responsibility to protect al workers, including those who are unvaccinated, regardless of the reason for those workers’ vaccine refusals. OSHA claims that the ETS encourages vaccination among health care workers, as many as 25% of whom may not be fully vaccinated, by exempting fully vaccinated workers from certain requirements in the ETS and by requiring that employers provide paid time off for 39 OSHA, “Occupational Exposure to COVID-19,” pp. 32382-32383. 40 OSHA, “Occupational Exposure to COVID-19,” p. 32422. 41 OSHA, “Occupational Exposure to COVID-19,” p. 32418. Congressional Research Service 8 OSHA: ETS and COVID-19 employees to receive the COVID-19 vaccine, thus eliminating what the agency cites as a major barrier to vaccination.42 In addition, OSHA asserts that the ETS wil provide additional protections to non-vaccinated employees, including those who are unable to be vaccinated due to medical or other reasons and those with compromised immune systems that may limit the effectiveness of the vaccine. Final y, OSHA states that while more evidence is needed to determine the overal effectiveness and duration of the effectiveness of the vaccines and the impact of new variants of COVID-19 on vaccine effectiveness, the ETS wil continue to provide protections to workers regardless of vaccine status or efficacy. Employers Covered by the ETS The COVID-19 ETS applies to al settings where employees provide health care services or health care support services, unless exempted in the ETS or otherwise exempt from OSHA coverage.43 Health care services is defined in the ETS as “services that are provided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health.”44 Health care support services are those that facilitate the provision of health care services and include such activities as patient admissions, food service, facility maintenance, and housekeeping. Employers in the following workplace settings and situations are exempt from the ETS:  the provision of first aid other than by a licensed health care worker;  the dispensing of prescriptions in retail pharmacies;  non-hospital ambulatory care settings where al non-employees are screened prior to entry and known or suspected COVID-19 cases are not permitted entry;  wel -defined hospital ambulatory care settings where al employees are fully vaccinated against COVID-19 and al non-employees are screened prior to entry and known or suspected COVID-19 cases are not permitted entry;  home health care settings where al employees are fully vaccinated against COVID-19 and al non-employees are screened prior to entry and known or suspected COVID-19 cases are not present;  health care support services performed offsite, such as offsite laundry services; and  telehealth services without direct patient contact.45 In cases in which health care services are provided in a traditional non-health-care setting, such as a medical clinic inside of a workplace, the ETS applies only to the health care setting and not the rest of the facility. Similarly, if emergency health care is provided in a non-health-care setting, such as emergency medical services responding to a non-health-care facility, the ETS applies only to the provision of the emergency health care. 42 OSHA, “Occupational Exposure to COVID-19,” p. 32423. 43 Per Section 3(5) of the OSH Act (29 C.F.R. §652(5)), OSHA does not have jurisdiction over the activities of state or local governments as employers. 44 29 C.F.R. §1910.502(b). 45 29 C.F.R. §1910.502(a)(2). Congressional Research Service 9 OSHA: ETS and COVID-19 Key Elements of the ETS COVID-19 Plan Each employer covered by the ETS is required to develop and implement a COVID-19 plan.46 For covered employers with 10 or more employees, the plans must be in writing. In developing and implementing the COVID-19 plan, an employer must:  assign at least one COVID-19 safety coordinator, knowledgeable in infection control, to monitor and ensure compliance with the COVID-19 plan;  conduct a workplace-specific hazard assessment;  involve non-managerial employees and their representatives in the development and implementation of the COVID-19 plan and the hazard assessment;  monitor the effectiveness and update the COVID-19 plan;  address the hazards identified in the hazard assessment;  include policies to minimize the risk of COVID-19 transmission for each employee; and  communicate and coordinate COVID-19 prevention policies with other employers at multi-employer worksites. Patient Screening and Management In settings in which direct patient care is provided, the covered employer must limit access to the facility and screen and triage patients, clients, vendors, visitors, and other non-employees for COVID-19.47 Covered employers must also comply with the CDC’s guidance document Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19) Pandemic, updated on February 23, 2021.48 Standard and Transmission-Based Precautions Covered employers must comply with the CDC’s guidance document 2007 Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Healthcare Settings, as updated in July 2019.49 46 29 C.F.R. §1910.502(c). 47 29 C.F.R. §1910.502(d). 48 CDC, Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19) Pandemic, updated February 23, 2021, https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-recommendations.html. 49 CDC, 2007 Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Health Care Settings, updated July 2019, https://www.cdc.gov/infectioncontrol/pdf/guidelines/isolation-guidelines-H.pdf. Congressional Research Service 10 OSHA: ETS and COVID-19 PPE50 Facemasks Covered employers must provide employees with facemasks that are cleared by the Food and Drug Administration (FDA), authorized by an FDA Emergency Use Authorization, or described in an FDA enforcement policy and ensure their proper use, covering the nose and mouth, whenever employees are indoors or occupying a vehicle with other people for work purposes.51 The covered employer must provide sufficient masks to ensure that each employee may change his or her mask at least once per day when soiled and when necessary for patient care purposes. Facemasks are not required to be worn when employees are alone or eating or drinking and separated from other persons. When it is important to see the employee’s mouth, such as when communicating with a person who is deaf, an employee may wear an alternative face covering such as a face shield. An employee can also be exempted from wearing a facemask due to a disability, for religious reasons, or if the employer can demonstrate that wearing a facemask would put the employee at risk of serious injury or death. Respirators and Other PPE When Exposed to Known or Suspected COVID-19 Cases Covered employers must provide employees who have contact with known or suspected COVID-19 cases with respirators, gloves, isolation gowns or protective clothing, and eye protection. Respirators must be provided and used in accordance with OSHA’s respiratory protection standard.52 When an employee is performing an aerosol-generating procedure, such as intubation, on a known or suspected COVID-19 case, the employer is encouraged, but not required, to provide the employee with an elastomeric respirator or powered-air purifying respirator (PAPR).53 Covered employers must also comply with PPE requirements in CDC’s guidance document 2007 Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Healthcare Settings, as updated in July 2019.54 Aerosol-Generating Procedures Whenever an aerosol-generating procedure is performed on a known or suspected COVID-19 case, the covered employer must ensure that only the minimum number of essential persons are present during the procedure and that the procedure is performed in an existing airborne infection isolation room (AIIR), if available.55 An AIIR is a permanent or temporary negative air pressure room with air handling capacity designed to isolate a patient. After the aerosol-generating procedure is completed, al surfaces and equipment in the room must be cleaned and disinfected. 50 For additional information on OSHA’s standards for respiratory PPE, see the section “ OSHA Respiratory Protection Standard” later in this report. 51 29 C.F.R. §1910.502(f)(1). 52 29 C.F.R. §1910.134. 53 29 C.F.R. §1910.502(f)(3) note 1. 54 CDC, 2007 Guideline for Isolation Precautions. 55 29 C.F.R. §502(g). Congressional Research Service 11 OSHA: ETS and COVID-19 Physical Distancing Except in brief situations in which people are moving, such as in a hal way, covered employers must ensure that employees are separated from al other persons by at least six feet when indoors unless such separation is not feasible for a specific task, such as direct patient care.56 When six feet of distancing is not feasible, covered employers must ensure as much separation between employees and other persons as possible. Physical Barriers In fixed workspaces where six feet of separation between employees and other persons is not possible, such as appointment check-in desks, covered employers must separate persons with fixed barriers that are cleanable or disposable and sufficiently sized to block the pathway between the persons’ faces.57 Cleaning and Disinfection In patient care areas and resident rooms and on medical devices and equipment, covered employers must conduct cleaning and disinfection in accordance with the CDC’s guidance documents Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19) Pandemic, updated February 23, 2021,58 and Guidelines for Environmental Infection Control in Health-Care Facilities, updated July 2019.59 In al other areas, the covered employer must clean high-touch surfaces and equipment at least daily in accordance with manufacturers’ instructions.60 If a known COVID-19 case has been in the workplace in the previous 24 hours, the covered employer must clean and disinfect any areas likely to have been contaminated in accordance with the CDC’s guidance document COVID-19: Cleaning and Disinfecting Your Facility; Every Day and When Someone Is Sick, updated April 5, 2021.61 Covered employers must also provide hand sanitizer that is at least 60% alcohol or accessible hand washing facilities.62 Building Ventilation Covered employers who own or control buildings with existing heating, ventilation, and air conditioning (HVAC) systems must ensure that:  the HVAC system is used in accordance with the manufacturer’s instructions and design specifications; 56 29 C.F.R. §502(h). 57 29 C.F.R. §502(i). 58 CDC, Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19) Pandem ic. 59 29 C.F.R. §502(j)(1); CDC, Guidelines for Environmental Infection Control in Health-Care Facilities, updated July 2019, https://www.cdc.gov/infectioncontrol/pdf/guidelines/environmental-guidelines-P.pdf. 60 29 C.F.R. §502(j)(2). 61 CDC, COVID-19: Cleaning and Disinfecting Your Facility; Every Day and When Someone Is Sick , updated April 5, 2021, https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html. 62 29 C.F.R. §502(j)(3). Congressional Research Service 12 OSHA: ETS and COVID-19  the amount of outside air circulating through the system and the number of air changes per hour are maximized, to the extent possible;  al air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher or, if MERV-13-rated filters are not compatible with the HVAC system, the highest compatible MERV-rated filters are used;  al air filters are maintained and replaced as necessary; and  al intake ports for outside air are cleaned and maintained.63 Covered employers with existing AIIRs must maintain and operate these rooms in accordance with design and construction criteria.64 Health Screening and Medical Management Screening Covered employers must screen al employees for COVID-19 before each workday and work shift. Screening can be conducted by employee self-screening or by the employer.65 If a COVID- 19 test is used as part of the screening, it must be provided at no cost to the employee. Employee Notification to Employer of COVID-19 or Symptoms Covered employers must require employees to notify them when they:  test positive for or is diagnosed with COVID-19;  are told by health care providers that they are suspected to have COVID-19;  are experiencing an unexplained loss of taste and/or smel ; or  are experiencing a fever of 100.4 degrees Fahrenheit or more and a new unexplained cough with shortness of breath.66 Employer Notification to Employees of COVID-19 in the Workplace Covered employers must make the following notifications within 24 hours of receiving information that a COVID-19 case was in the workplace:  notify each employee who was not wearing a respirator and other appropriate PPE and was in close contact with the COVID-19 case with the dates the contact occurred; and  notify al other employees and other employers with employees in the facility who were not wearing respirators and other appropriate PPE and were in a wel -defined area of the workplace (such as a patient care floor) with the COVID-19 case during the period beginning two days before the case became sick or, if asymptomatic, submitted a sample for testing and lasting until the case was isolated.67 63 29 C.F.R. §502(k)(1). 64 29 C.F.R. §502(k)(2). 65 29 C.F.R. §502(l)(1). 66 29 C.F.R. §502(l)(2). 67 29 C.F.R. §502(l)(3). Congressional Research Service 13 OSHA: ETS and COVID-19 Notifications must be made without revealing the name, contact information, or occupation of any employee. Notification does not need to be made in cases in which a medical facility routinely provides services to known or suspected COVID-19 cases, such as COVID-19 testing centers, emergency departments, and inpatient COVID-19 wards. Medical Removal Covered employers must immediately remove from the workplace any employee who tests positive for or is diagnosed with COVID-19 and make a return to work decision on that employee in accordance with the CDC’s guidance documents COVID-19: Isolation If You Are Sick; Separate Yourself from Others If You Have COVID-19, updated February 18, 2021,68 and COVID-19: Return to Work Criteria for Healthcare Personnel with SARS-CoV-2 Infection (Interim Guidance), updated February 16, 2021.69 Covered employers must immediately remove from the workplace any employee who:  is told by a health care provider that he or she is suspected to have COVID-19,  is experiencing an unexplained loss of taste and/or smel , or  is experiencing a fever of 100.4 degrees Fahrenheit or more and a new unexplained cough with shortness of breath.70 Covered employers may make return-to-work decisions on such employees in accordance with the two CDC guidance documents referenced above or permit return to work when the employee tests negative on a COVID-19 polymerase chain reaction (PCR) test provided by the employer at no cost to the employee. If the employee refuses to be tested, he or she forfeits al medical removal protections (discussed in the next section of this report) and must remain out of work until the covered employer makes a return to work determination in accordance with the two CDC guidance documents referenced above. Covered employers are required to immediately remove from the workplace any employee who was not wearing a respirator and other appropriate PPE and was in close contact with a COVID-19 case in the workplace, except in workplaces that routinely provide services to COVID-19 cases.71 Such an employee must remain out of work for 14 days or until seven days after testing negative on a COVID-19 PCR test administered by the employer at no cost to the employee and administered at least five days after the close contact with the COVID-19 case. If the employee refuses to be tested, he or she forfeits al medical removal protections (discussed in the next section of this report). A covered employer is not required to remove from the workplace an employee who was not wearing a respirator and other appropriate PPE and was in close contact with a COVID-19 case in the workplace if that employee is asymptomatic for COVID-19 and is fully vaccinated against COVID-19 or had COVID-19 and recovered in the past three months. 68 CDC, Isolation If You Are Sick; Separate Yourself from Others If You Have COVID-19, updated February 18, 2021, https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/isolation.html. 69 29 C.F.R. §§502(l)(4)(i) and (l)(6); CDC, COVID-19: Return to Work Criteria for Healthcare Personnel with SARS -CoV-2 Infection (Interim Guidance), updated February 16, 2021, https://www.cdc.gov/coronavirus/2019-ncov/hcp/return-to-work.html. 70 29 C.F.R. §§502(l)(4)(ii) and (l)(6). 71 29 C.F.R. §502(l)(4)(iii). Congressional Research Service 14 OSHA: ETS and COVID-19 Covered employers may require employees subject to medical removal to work remotely or in isolation if suitable work is available.72 Medical Removal Protection Benefits Covered employers who require employees who have been removed from the workplace to work remotely or in isolation must continue to provide those employees with their regular pay and benefits.73 The medical removal protection provisions do not apply to covered employers with 10 or fewer employees on June 21, 2021.74 Al other covered employers must provide al of the fringe benefits normal y provided to the employee and the following pay to the removed employee:  for covered employers with 500 or fewer employees, the employee’s full amount of normal pay, up to $1,400 per week, for the first two weeks, followed by two- thirds of the employee’s normal pay, up to $200 per day, for al remaining weeks; and  for covered employers with more than 500 employees, the employee’s full amount of normal pay, up to $1,400 per week, for the entire removal period.75 The amount that a covered employer must pay to a removed employee is reduced by any public or employer-provided payments (such as sick leave) received by the employee during the employee’s removal.76 Upon return to the workplace, a removed employee is entitled to al employment rights and benefits, including the right to his or her previous job.77 Vaccination Each covered employer is required to provide employees with a reasonable amount of paid leave to receive a COVID-19 vaccine and recover from any vaccine-related side effects.78 Covered employers are not required to mandate that their employees receive a COVID-19 vaccine. Training Covered employers must provide training on COVID-19 prevention, in appropriate languages and at appropriate literacy levels, to al employees.79 Training must be conducted by a person knowledgeable about the subject matter, and employees must have the opportunity to ask questions during the training. Covered employers must ensure that trained employees understand at least the following:  how COVID-19 is transmitted and how to reduce transmission through hand hygiene and covering the nose and mouth, the signs and symptoms of COVID- 72 29 C.F.R. §502(l)(4)(iv). 73 29 C.F.R. §502(l)(5(ii). 74 29 C.F.R. §502(l)(5)(i). 75 29 C.F.R. §502(l)(5(iii). 76 29 C.F.R. §502(l)(5(iv). 77 29 C.F.R. §502(l)(5(v). 78 29 C.F.R. §502(m). 79 29 C.F.R. §502(n). Congressional Research Service 15 OSHA: ETS and COVID-19 19, the risk factors for severe il ness from COVID-19, and when to seek medical attention;  patient screening and management policies and procedures;  workplace tasks that could result in transmission of COVID-19;  policies and procedures to prevent COVID-19 transmission that are applicable to an employee’s duties;  agreements between multiple employers in a workplace related to shared spaces and equipment;  policies and procedures for the use of PPE;  cleaning and disinfecting policies and procedures;  paid leave available from the employer or under federal, state, or local law for COVID-19 and available workplace flexibility policies;  the names of the safety coordinators identified in the required COVID-19 plan;  the requirements of the COVID-19 ETS; and  how employees can receive copies of the COVID-19 ETS, employer policies and procedures developed under the ETS, and the written COVID-19 plan, if applicable. Covered employers are required to provide retraining to an employee when that employee takes on new job tasks, workplace policies or procedures change, or there is evidence that the employee has not retained the information from the previous training. Anti-Retaliation80 Covered employers must notify al employees of their rights to the protections offered by the COVID-19 ETS and that employers are prohibited from discharging or discriminating against employees for exercising these rights.81 Recordkeeping and Reporting82 The recordkeeping and reporting provisions of the COVID-19 ETS do not apply to covered employers with 10 or fewer employees on June 21, 2021.83 Al other covered employers must retain al versions of their COVID-19 plans and maintain logs of al COVID-19 cases among employees, regardless of whether the COVID-19 transmission occurred in the workplace.84 Al versions of the COVID-19 plan and the COVID-19 log (with identifying information redacted) must be provided, within one business day of being requested, to any employee or the personal or authorized representative of any employee. An employee and his or her authorized representative may examine his or her unredacted personal entry in the COVID-19 log. Covered employers must 80 For additional information on OSHA’s enforcement of anti-retaliation and whistleblower protection provisions, see the section “Whistleblower Protections” later in this report. 81 29 C.F.R. §502(o). 82 For additional information on OSHA’s COVID-19 recordkeeping and reporting requirements for employers not covered by the ET S, see the section “ COVID-19 Recordkeeping” later in this report. 83 29 C.F.R. §502(q)(1). 84 29 C.F.R. §502(q). Congressional Research Service 16 OSHA: ETS and COVID-19 report to OSHA any employment-related COVID-19 fatalities or inpatient hospitalizations in the same manner as any other employment-related fatalities or inpatient hospitalizations.85 Mini-Respiratory Protection The PPE provision of the COVID-19 ETS permits covered employers to provide their employees with respirators when respirators are not specifical y required by the ETS. Under OSHA’s respiratory protection standard, employers must provide a medical evaluation to each employee who is provided a respirator to ensure that such employee may safely use the respirator and must ensure that the fit of each type of respirator used by an employee is properly tested to ensure a tight seal around the face (referred to as fit testing).86 Under the mini-respiratory-protection provision of the COVID-19 ETS, employers who provide respirators to their employees when respirators are not specifical y required may forgo the medical evaluation and fit-testing requirements of the respiratory protection standard.87 Such covered employers must ensure that employees are trained in respirator use; conduct their own user-seal tests of the respirators before each use; and comply with appropriate procedures for the storage, reuse, and discontinuation of respirators.88 When respirators are required by the COVID-19 ETS, employers must comply with al elements of the OSHA respiratory protection standard, including medical evaluation and fit testing. Other OSHA Standards Related to COVID-19 While the COVID-19 ETS applies only to health care employers, al employers are required to comply with other OSHA standards that, while not specific to COVID-19, may cover situations related to the prevention of COVID-19 transmission in the workplace. 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 or are likely to cause death or serious physical harm” to workers.89 In addition, OSHA’s standards for the use of PPE may apply in cases in which workers require eye, face, hand, or respiratory protection against COVID-19 exposure.90 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 cases in which engineering controls, such as ventilation or enclosure of hazards, are insufficient 85 29 C.F.R. §502(q). OSHA regulations at T itle 29, Section 1904.39, of the Code of Federal Regulations require employers to report to OSHA any employment -related fatalities within eight hours and any employment -related inpatient hospitalizations within 24 hours. 86 For additional information on OSHA’s respiratory protection standard, see the section “OSHA Respiratory Protection Standard” later in this report. 87 29 C.F.R. §504. 88 In a user-seal check, the user of the respirator checks the fit and seal of the respirator to his or her face by exhaling or inhaling to determine if any air passes between the face and respirator. 89 29 U.S.C. §654(a)(1). 90 29 C.F.R. §§1910.133, 1910.134, and 1910.138. Congressional Research Service 17 OSHA: ETS and COVID-19 to protect workers from breathing contaminated air.91 Surgical masks, procedure masks, and dust masks are not considered respirators. NIOSH certifies respirators pursuant to federal regulations.92 For nonpowered respirators, such as filtering face piece respirators commonly used in health care and construction, NIOSH classifies respirators based on their efficiency at filtering airborne particles and their ability to protect against oil particles. Under the NIOSH classification 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 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, 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. 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 and approved certain models of respirators for certified use beyond their manufacturer-designated shelf lives.93 Respirators designed for certain medical and surgical uses are subject to both certification by NIOSH (for oil protection and efficiency) and regulation by the 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 not affect the respirator’s protection afforded the user, it may al ow unfiltered air from the user into a sterile field. On March 2, 2020, FDA issued an Emergency Use Authorization to approve for use in medical settings certain NIOSH-certified respirators not previously regulated by FDA.94 Medical Evaluation and Fit Testing The OSHA respiratory protection standard requires that the employer provide a medical evaluation to the employee to determine if the employee is physiological y able to use a respirator. This medical evaluation must be completed before any fit testing. For respirators designed to fit tightly against the face, the specific type and model of respirator that an employee is to use must be fit tested in accordance with the procedures provided in Appendix A of the OSHA respiratory protection standard to ensure there is a complete seal around the respirator when worn.95 Once an employee has been fit tested for a respirator, he or she is required to be fit tested annual y or whenever the model of respirator, but not the actual respirator itself, is changed. Each time an individual uses a respirator, he or she is required to perform a check of the seal of the respirator to his or her face in accordance with the procedures provided in Appendix B of the standard.96 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 respirator. 91 29 C.F.R. §1910.134. 92 42 C.F.R. Part 84. 93 NIOSH, Release of Stockpiled Filtering Facepiece Respirators Beyond the Manufacturer-Designated Shelf Life: Considerations for the COVID-19 Response, February 28, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/release-stockpiled-N95.html. 94 Letter from RADM Denise M. Hinton, chief scientist, FDA, to Robert R. Redfield, Director, CDC, March 2, 2020, at https://www.fda.gov/media/135763/download. 95 29 C.F.R. §1910.134 Appendix A. PAPRs that do not require a seal to the user’s face do not need to be fit tested. 96 29 C.F.R. §1910.134 Appendix B. Congressional Research Service 18 OSHA: ETS and COVID-19 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 five 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;97 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 is not damaged, soiled, or contaminated (e.g., with blood, oil, or paint);98 3. employers may permit the use of respirators not certified by NIOSH, but approved under standards used by the following countries or jurisdictions, in accordance with the protection equivalency tables provided in Appendices A and B of the enforcement guidance document:  Australia,  Brazil,  European Union,  Japan,  Mexico,  People’s Republic of China, and  Republic of Korea.99 4. employers may permit the re-use of respirators decontaminated in accordance with CDC decontamination guidance;100 and 5. employers may permit the use of NIOSH-approved tight-fitting PAPRs in place of respirators when respirator fit testing is not feasible due to supply issues.101 97 OSHA, Temporary Enforcement Guidance—Health Care 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; and OSHA Expanded Tem porary Enforcem ent Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the Coronavirus Disease 2019 (COVID-19) Pandem ic, April 8, 2020, at https://www.osha.gov/memos/2020-04-08/expanded-temporary-enforcement-guidance-respiratory-protection-fit-testing-n95. 98 OSHA, Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandem ic, April 3, 2020, at https://www.osha.gov/memos/2020-04-03/enforcement-guidance-respiratory-protection-and-n95-shortage-due-coronavirus. Under this guidance, employers are required to address in their written respiratory protection plans when respirators are contaminated and not ava ilable for use or reuse. 99 OSHA, Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandem ic, April 3, 2020, at https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under. 100 OSHA, Enforcement Guidance on Decontamination of Filtering Facepiece Respirators in Healthcare During the Coronavirus Disease 2019 (COVID-19) Pandem ic, April 24, 2021, at https://www.osha.gov/memos/2020-04-24/enforcement -guidance-decontamination-filtering-facepiece-respirators-healthcare; and CDC, Im plem enting Filtering Facepiece Respirator (FFR) Reuse, Including Reuse after Decontam ination, When There Are Known Shortages of N95 Respirators, October 19, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontamination-reuse-respirators.html. 101 OSHA, Temporary Enforcement Guidance—Tight-Fitting Powered Air Purifying Respirators (PAPRs) Used During the Coronavirus Disease 2019 (COVID-19) Pandem ic, October 2, 2021, at https://www.osha.gov/memos/2020-10-02/ Congressional Research Service 19 OSHA: ETS and COVID-19 COVID-19 Recordkeeping Sections 8(c) and 24(a) of the OSH Act require employers to maintain records of occupational injuries and il nesses in accordance with OSHA regulations.102 OSHA’s reporting and recordkeeping regulations require that employers with 10 or more employees must keep records of work-related injuries and il nesses that result in lost work time for employees or that require medical care beyond first aid.103 Employers must also report to OSHA, within eight hours, any workplace fatality and, within 24 hours, any injury or il ness that results in in-patient 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 exempt from the recordkeeping requirements but not the requirement to report to OSHA serious injuries, il nesses, and deaths.104 Offices of physicians, dentists, other health practitioners and outpatient medical clinics are included in the industries that are exempt from the recordkeeping requirements. OSHA regulations require the employer to determine if an employee’s injury or il ness is related to his or her work and thus subject to the recordkeeping requirements.105 The regulations provide a presumption that an injury or il ness that occurs in the workplace is work-related and recordable unless one of the exemptions provided in the regulations applies.106 One of the listed exemptions is “The il ness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucel osis, hepatitis A, or plague are considered work-related if the employee is infected at work).”107 Because of the nature of COVID-19 transmission, which can occur outside of work as wel as in 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 if an employee’s COVID-19 is subject to the recordkeeping requirements. Initial OSHA Recordkeeping Guidance On April 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be treated under the recordkeeping requirements.108 This guidance stated that COVID-19 cases were recordable if they were work-related. Under this guidance, employers in the following industry groups were to fully comply with the recordkeeping regulations, including the requirement to determine if COVID-19 cases were work-related:  health care; temporary-enforcement-guidance-tight-fitting-powered-air-purifying-respirators. 102 29 U.S.C. §§657(c) and 673(a). 103 OSHA’s reporting and recordkeeping regulations are at T itle 29, Part 1904, of the Code of Federal Regulations. 104 T he list of exempted industries is at T itle 29, Subpart B, Appendix A, of the Code of Federal Regulations. States with state occupational safety and health plans may require employers in these exempted industries to comply with the recordkeeping requirements. 105 29 C.F.R. §1904.5. 106 29 C.F.R. §1905.5(a). 107 29 C.F.R. §1904.5(b)(2)(viii). 108 OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), April 10, 2020, https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19. Congressional Research Service 20 OSHA: ETS and COVID-19  emergency response, including firefighting, emergency medical services, and law enforcement; and  correctional institutions. For al other employers, OSHA required employers to determine if COVID-19 cases were work-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- related. This could have included, for example, a number of cases developing among workers who worked closely together without an alternative explanation. 2. The evidence of work-relatedness was reasonably available to the employer. For purposes of this guidance, examples of reasonably available evidence included information given to the employer by employees, as wel as information that an employer learned regarding its employees’ health and safety in the ordinary 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.109 This new guidance rescinds the previous guidance issued by OSHA on April 10, 2020. Under this new guidance, al employers, regardless of type of industry or employment, are subject to the recordkeeping and reporting 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, OSHA says it wil consider the following factors:  the reasonableness of the employer’s investigation of the COVID-19 case and its transmission to the employee,  the evidence that is available to the employer, and  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 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. Injuries and Illnesses Caused by the COVID-19 Vaccine Are Not Subject to Recording and Reporting Requirements OSHA guidance, issued in the form of questions and answers on the OSHA COVID-19 Frequently Asked Questions webpage on May 22, 2021, provides that the agency wil not require any employers to record or report any injuries or il ness resulting from the COVID-19 vaccine even if vaccination is a condition of employment. This guidance is to remain in effect through May 2022.110 109 OSHA, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), May 19, 2020, https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19. 110 OSHA, COVID-19: Frequently Asked Questions, https://www.osha.gov/coronavirus/faqs#vaccine. T his guidance supersedes previous guidance, issued on April 21, 2021, that required employers to record and report injuries and illnesses from the COVID-19 vaccine if the employers required the vaccine as a condit ion of employment. Congressional Research Service 21 OSHA: ETS and COVID-19 Whistleblower Protections 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.111 Commonly referred to as the 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;  causes an OSHA proceeding, such as an investigation, to be instituted;  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 afforded by the OSH Act.112 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 material safety data sheets or other information required to be made available by the employer; and the right to report a work-related injury, il ness, or death to OSHA.113 In limited cases, the employee has the right to refuse to work if conditions reasonably present a risk of serious injury or death and there is not sufficient time to eliminate the danger through other means.114 In the 116th Congress, the COVID-19 Every Worker Protection Act of 2020 (H.R. 6559/S. 3677) would have required OSHA to promulgate an ETS and required the ETS and permanent standard promulgated pursuant to the legislation to expand the protections for whistleblowers. The following additional activities taken by employees would have granted them protection from retaliation and discrimination from employers and agents of employers:  reporting to the employer; a local, state, or federal agency; or the media or on a social media platform the following:  a violation of the ETS or permanent standard promulgated pursuant to the legislation,  a violation of the infectious disease control plan required by the ETS or permanent standard, or  a good-faith concern about an infectious disease hazard in the workplace;  seeking assistance from the employer or a local, state, or federal agency with such a report; and  using personal y supplied PPE with a higher level of protection than offered by the employer. 111 29 U.S.C. §660(c). OSHA also enforces whistleblower provisions in 22 other federal statutes. Information on statutes 29 U.S.C. §660(c). OSHA also enforces whistleblower provisions in 22 other federal statutes. Information on statutes
with whistleblower provisions enforced by OSHA iswith whistleblower provisions enforced by OSHA is at OSHA, at OSHA, Whistleblower Statutes Sum m ary Chart, October 17, , October 17,
2009, 2009, at https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart -10.8-Final.pdf. https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart -10.8-Final.pdf.
89112 29 C.F.R. §1977.3. Public 29 C.F.R. §1977.3. Public- sector employees, except employees of the sector employees, except employees of the ~~United States Post al~~U.S. Postal Service, are not protected Service, are not protected
by the whistleblower provisionby the whistleblower provision, but may be but may be covered by whistleblower provisions in other federal and state statutes. covered by whistleblower provisions in other federal and state statutes.
90113 For additional information on other rights covered by the whistleblower protection provision, see OSHA, For additional information on other rights covered by the whistleblower protection provision, see OSHA, ~~Jan uary~~January 9, 9,
2019, 2019, Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection
Provision, pp. 5-7, , pp. 5-7, at https://www.osha.gov/sites/default/files/11cDeskAid.pdf. https://www.osha.gov/sites/default/files/11cDeskAid.pdf.
91114 29 C.F.R. §1977.12(b)(2). 29 C.F.R. §1977.12(b)(2).
Congressional Research Service Congressional Research Service

2022

link to page 32 OSHA: ETS and COVID-19 State Occupational Safety and Health Standards Two states, California and Michigan, have issued temporary standards under their state plans that directly address COVID-19 exposure. In addition, Oregon and Virginia have issued permanent COVID-19 standards, and California has had a permanent state standard covering aerosol transmission of diseases since 2009. Table A-2 in the Appendix to this report provides a summary of these state standards. California: Cal/OSHA Aerosol Transmissible Disease Standard The California Division of Occupational Safety and Health (Cal/OSHA), under its state plan, promulgated its aerosol transmissible disease (ATD) standard in 2009.115 The ATD standard covers most health care workers (including emergency medical services and police transport or detention of infected persons) and laboratory workers, as wel as workers in correctional facilities, homeless shelters, and drug treatment programs. Under the ATD standard, SARS-CoV-2, the virus that causes COVID-19, is classified as a disease or pathogen requiring airborne isolation. This classification subjects the virus to stricter control standards than diseases requiring only droplet precautions, such as seasonal influenza.116 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 exposed employees, including post-exposure evaluation of employees and treatment and vaccines, if available;  the removal, without penalty to the employees, of exposed employees,  specific requirements for laboratory workers, and  PPE requirements. Cal/OSHA Aerosol Transmissible Disease PPE Requirements The Cal/OSHA ATD standard requires that employers provide employees PPE, including gloves, gowns or coveral s, eye protection, and respirators certified by NIOSH at least at the N95 level whenever workers  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;  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; 115 Aerosol Transmissible Diseases, Cal. Code Regs. tit. 8, §5199, available at https://www.dir.ca.gov/title8/5199.html. T he California state plan covers all state and local government agencies and all private sector workers in the state, with the exception of maritime workers; workers on military bases and in national parks, monuments, memorials, and recreation areas; workers on federally recognized Native American reservations and trust lands; and U.S. Postal Service contractors. 116 Cal. Code Regs. tit. 8, §5199 Appendix A. Congressional Research Service 23 OSHA: ETS and COVID-19  are present during aerosol generating procedures on cadavers of cases or suspected cases;  transport a case or suspected case within a facility or within a vehicle when the patient is not masked; or  are working with a viable virus in the laboratory. In addition, a PAPR with a high-efficiency particulate air (HEPA) filter must be used whenever a worker performs a high-hazard procedure on a known or suspected COVID-19 case.117 High-hazard procedures are those in which “the potential for being exposed to aerosol transmissible pathogens is increased due to the reasonably anticipated generation of aerosolized pathogens”—they include intubation, airway suction, and caring for patients on positive pressure ventilation.118 Emergency medical services (EMS) workers may use N100, R100, or P100 respirators in place 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.119 This ETS became effective on November 30, 2020, and is to remain in effect for 180 days and can be extended for up to two periods of 90 days each. California Executive Orders N-40-20 and N-71-20 each extended the ETS by 60 days such that the ETS now expires on September 30, 2021. 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. The Cal/OSHA ETS includes specific provisions that apply to employer-provided housing and transportation. On June 17, 2021, the California Occupational Safety and Health Standards Board voted to amend the Cal/OSHA ETS to permit fully vaccinated employees to work indoors without facemasks or face coverings and al employees, regardless of vaccination status, to work outdoors without facemasks or face coverings. Michigan: MIOSHA COVID-19 Emergency Rules 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), promulgated emergency rules, with a duration of six months, to address workplace exposure to COVID-19. On April 10, 2021, the MIOSHA emergency rules were extended for an additional six months through October 14, 2021. These rules were amended, effective May 24, 2021, based on updated CDC guidance, and the amended rules wil remain in effect through October 14, 2021.120 The Michigan emergency rules apply to al employers covered by the state plan. 117 A PAPR uses a mechanical device to draw in room air and filter it before expelling that air over the user’s face. In general, PAPRs do not require a tight seal to the user’s face and do not need to be fit tested. 118 Cal. Code Regs. tit. 8, §5199(b). 119 COVID-19 Prevention, Cal. Code Regs. tit. 8, §§3205-3205.4, available at https://www.dir.ca.gov/dosh/coronavirus/ET S.html. 120 Emergency Rules: Coronavirus 2019 (COVID-19), available at https://www.michigan.gov//documents/leo/Final_MIOSHA_Rules_705164_7.pdf. T he 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 businesses owned or operated by tribal members at Indian reservations, and aircraft cabin crew members. Congressional Research Service 24 OSHA: ETS and COVID-19 Oregon: Oregon OSHA COVID-19 Permanent Administrative Rules On November 6, 2020, the Oregon Department of Consumer and Business Services, which operates Oregon’s state plan (Oregon OSHA), adopted temporary administrative rules to specifical y address COVID-19 exposures in the workplace. These rules were reissued to correct “scriveners’ errors” on December 16, 2020, and were set to expire on May 4, 2021. On May 4, 2021, permanent administrative rules became effective.121 These permanent rules wil remain in effect until repealed or revised by Oregon OSHA. However, the rules require Oregon OSHA to consult with state agencies and other stakeholders to determine when the permanent rules can be amended or repealed, with the first of these consultations to occur no later than July 2021. After the first consultations, ongoing consultations are required every two months until the rules are repealed. In addition to rules that apply to al employers, the appendices to the Oregon OSHA rules also include mandatory guidance that applies to the following industries and employers:  restaurants, bars, brewpubs, and public tasting rooms at breweries, wineries, and distil eries;  retail stores;  personal services providers such as hair salons;  construction operations;  transit agencies;  professional and Division I, PAC-12, Big Sky, and West Coast Conference sports;  fitness-related organizations;  K-12 educational institutions (public or private);  child care and early education providers;  veterinary clinics;  fire and emergency medical services;  law enforcement; and  jails and custodial institutions. On June 30, 2012, Oregon OSHA amended its COVID-19 rules to remove the face covering and social distancing requirements for al employment except health care, public transit, and airports.122 121 Addressing COVID-19 Workplace Risks, Or. Admin. R. 437-001-0744, available at https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf. T he Oregon state plan covers all state and local government agencies and all private sector workers in the state, with the exception of maritime workers, private sector establishments within the boundaries of Indian reservations and federal military reservations, employment at Crater Lake National Park and the U.S. Department of Energy Albany Research Center, U.S. Postal Service contractors, and aircraft cabin crew members during flight operations. 122 Oregon OSHA Administrative Order 5-2021, available at https://osha.oregon.gov/OSHARules/adopted/2021/ao5-2021-letter-cov19-allworkplaces.pdf. Congressional Research Service 25 OSHA: ETS and COVID-19 Virginia: VOSH COVID-19 Permanent Standard On July 15, 2020, the Virginia Safety and Health Codes Board adopted an ETS to specifical y protect employees from exposure to SARS-CoV-2, the virus that causes COVID-19.123 On January 12, 2021, the Virginia Safety and Health Codes Board voted to promulgate a permanent COVID-19 standard that supersedes the ETS.124 This ETS, promulgated under Virginia’s state occupational safety and health plan (VOSH), was the first state standard to specifical y address COVID-19 in the workplace.125 As an ETS, the VOSH standard was to expire within six months of its effective date, upon expiration of the governor’s state of emergency, when superseded by a permanent standard, or when repealed by the Virginia Safety and Health Codes Board, whichever came first. The VOSH permanent standard applies to al state and local government agencies and al covered private sector employees in the state and does not contain additional requirements for any specific industries. Among the concerns raised by groups opposed to the VOSH permanent standard was that, because the standard is permanent, employers would be required to comply with the COVID-19 prevention requirements even after the COVID-19 pandemic has ended.126 While the standard is permanent, a provision in the standard requires that within 14 days of expiration of the governor’s COVID-19 state of emergency and the commissioner of health’s COVID-19 declaration of public emergency, the Virginia Safety and Health Codes Board must meet to determine if there is a continued need for the standard. 123 Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220, available at https://www.doli.virginia.gov/wp-content/uploads/2020/07/RIS-filed-RT D-Final-ET S-7.24.2020.pdf. T his ET S was effective upon publication in a Richmond, VA, newspaper during the week of July 27, 2020. 124 Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220, available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-Prevention-of-COVID-19-16VAC25-220-1.15.2021.pdf. T his permanent standard is effective on January 27, 2021. 125 T he 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 in which the federal government has civil jurisdiction, workers at the U.S. Department of Energy’s Southeastern Power Administration Kerr-Philpott System, and aircraft cabin crew members. 126 See, for example, letter from Hobey Bauhan, President, Virginia Poultry Federation, to Princy Doss, Director of Policy, Planning and Public Information, and Jay Withrow, Director, Division of Legal Support, Virginia Department of Labor and Industry, January 7, 2021, Congressional Research Service 26~~OSHA: ETS and COVID-19~~

~~H.R. 6559 would have required that the ETS and permanent standard promulgated pursuant to the~~
~~legislation expand the protections for whistleblowers. The following additional activities taken by~~
~~employees would grant them protection from retaliation and discrimination from employers and~~
~~agents of employers:~~
~~ reporting to the employer; a local, state, or federal agency; or the media; or on a~~
~~social media platform; the following:~~
~~ a violation of the ETS or permanent standard promulgated pursuant to the~~
~~legislation;~~
~~ a violation of the infectious disease control plan required by the ETS or~~
~~permanent standard; or~~
~~ a good-faith concern about an infectious disease hazard in the workplace;~~
~~ seeking assistance from the employer or a local, state, or federal agency with~~
~~such a report; and~~
~~ using personal y supplied PPE with a higher level of protection than offered by~~
~~the employer.~~
~~H.R. 6800, The Heroes Act~~
~~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.~~
~~H.R. 6800, was passed by the House on May 15, 2020. In a letter to Speaker of the House Nancy~~
~~Pelosi, the AHA expressed its opposition to the ETS provisions in The Heroes Act citing the~~
~~potential for confusion that new regulations could bring and the “ongoing global lack of supplies,~~
~~equipment and testing capability” faced by hospitals.92 The AHA also stated that the provision~~
~~that would require the ETS to be based on state standards “suggests that the federal government is~~
~~surrendering its responsibility to appropriately regulate the nation to a state government agency~~
~~without consideration of whether that state’s decisions are appropriate for implementation~~
~~anywhere and everywhere.”~~
~~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~~
~~Amendment to H.R. 925, the revised Heroes Act, passed by the House on October 1, 2020.~~
~~P.L. 116-260, Consolidated Appropriations Act, 2021~~
~~Division N of the Consolidated Appropriations Act, 2021 (P.L. 116-260), included numerous~~
~~provisions related to COVID-19. However, no provisions related to an OSHA ETS were included~~
~~in this legislation.~~

~~92 Letter from T homas 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-~~
~~AHALettertoHouseonHEROESAct051420final.pdf.~~
~~Congressional Research Service~~

21

~~OSHA: ETS and COVID-19~~

~~Congressional Activity in the 117th Congress~~
~~There has been no legislation introduced in the 117th Congress that would require OSHA to~~
~~promulgate a COVID-19 ETS. On April 26, 2021, Representatives Debbie Dingel , Rashida~~
~~Tlaib, and Andy Levin wrote a letter to President Biden cal ing for immediate action on a~~
~~COVID-19 ETS and an explanation as to why an ETS has not yet been promulgated by OSHA.93~~
~~On May 24, 2021, minority members of the House Committee on Education and Labor—citing~~
~~the availability of the COVID-19 vaccine and CDC guidance that fully vaccinated persons may~~
~~resume certain activities, including indoor activities, without wearing face coverings—wrote a~~
~~letter to Secretary of Labor Marty Walsh urging the Department of Labor to stop work on a~~
~~proposed COVID-19 ETS.94~~

~~93 Representatives Debbie Dingell, Rashida T laib, and Andy Levin, letter to President Joe Biden, April 26, 2021,~~
~~https://debbiedingell.house.gov/uploadedfiles/4.26.21_dingell_tlaib_levin_nurse_osha_letter_ -_signed.pdf.~~
~~94 Representatives Virginia Foxx et al., letter to Secretary of Labor Marty Walsh, May 24, 2021, https://republicans-~~
~~edlabor.house.gov/uploadedfiles/05.24.21_osha_ets_letter.pdf.~~
~~Congressional Research Service~~

22

OSHA: ETS and COVID-19

Appendix.
Table A-1. OSHA Emergency Temporary Standards (ETS)
Federal Register
Result of Judicial
Judicial Review
Year
Subject of ETS
Citation of ETS
Review
Case Citation
1971 1971
Asbestos Asbestos
36 36 Federal Register
Not chal enged Not 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 chal enged Not 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. 1977) (D.C. Cir. 1977)
1977 1977
1,2 Dibromo-3- 1,2 Dibromo-3-
42 42 Federal Register
Not chal enged Not chal enged
— —
chloropropane (DBCP) 45535 (September 9, chloropropane (DBCP) 45535 (September 9,
1977) 1977)
1978 1978
Acrylonitrile (vinyl Acrylonitrile (vinyl
43 43 Federal Register
Stay denied Stay denied
Vistron v. OSHA, 6 , 6
cyanide) cyanide)
2585 (January 17, 2585 (January 17,
OSHC 1483 (6th Cir. OSHC 1483 (6th Cir.
1978) 1978)
1978) 1978)
1983 1983
Asbestos Asbestos
48 48 Federal Register
Stayed Stayed
Asbestos Info. Ass'n v.
51086 (November 4, 51086 (November 4,
OSHA, 727 F.2d 415 , 727 F.2d 415
1983) 1983)
(5th Cir. 1984) (5th Cir. 1984)
2021 COVID-19 86 Federal Register Petitions for review United Food and 32376 (June 21, 2021) filed on June 24, 2021 Commercial Workers and American Federation of Labor and Congress of Industrial Organizations v. OSHA, et al., Docket No. 21-1143 (D.C. Cir. June 24, 2021) Source: CRS with data from Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: CRS with data from Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking:
Reproductive Hazards as an Example,” Reproductive Hazards as an Example,” Boston Col ege Environmental Affairs Law Review, vol. 12, no. 4 (August , vol. 12, no. 4 (August
1985), p. 673. 1985), p. 673.

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link to page link to page 2832 link to page link to page 2832 link to page link to page 2832 link to page link to page 2832 link to page link to page 2832 OSHA: ETS and COVID-19

Table A-2. State Occupational Safety and Health Standards That Apply to COVID-19
Covered
State
Standard
Employers
Issued
Expires
California California
Aerosol Aerosol
Health care, Health care,
July 6, 2009 July 6, 2009
Permanent Permanent
(Cal/OSHA) (Cal/OSHA)
Transmissible Transmissible
laboratories, laboratories,
Disease (ATD Disease (ATD)a
corrections corrections
facilities, homeless facilities, homeless
shelters, and drug shelters, and drug
treatment centers treatment centers
COVD-19 COVD-19
Al employers Al employers
November 30, 2020 September 30, 2021 November 30, 2020 September 30, 2021
Preventio Preventionb
June 17, 2021 (amended) Michigan (MIOSHA) Michigan (MIOSHA)
Emergency Rules: Emergency Rules:
Al employers, with Al employers, with
October 14, 2020, October 14, 2020,
October 14, 2021 October 14, 2021
Coronavirus 2019 Coronavirus 2019
additional rules for additional rules for
April 10, 2021 April 10, 2021
(COVID- (COVID-19)c
specific industries specific industries
(extended) (extended)
May 24, 2021 May 24, 2021
(amended) (amended)
Oregon (Oregon Oregon (Oregon
Addressing COVID- Addressing COVID-
Al employers, with Al employers, with
November 6, 2020 November 6, 2020
Permanentf Permanentf
OSHA) OSHA)
19 Workplace 19 Workplace
additional rules for additional rules for
(ETS), reissued (ETS), reissued
Risk Risksd
specific industries specific industries
December 11, 2020 December 11, 2020
May 4, 2021 May 4, 2021
(permanent (permanent
standardstandard) June 30, 2021 (amended) )
Virginia (VOSH) Virginia (VOSH)
Infectious Disease Infectious Disease
Al employers Al employers
July 27, 2020 (ETS), July 27, 2020 (ETS),
Permanentg Permanentg
Prevention: SARS- Prevention: SARS-
January 12, 2021 January 12, 2021
CoV-2 Virus that CoV-2 Virus that
(permanent (permanent
Causes COVID- Causes COVID-19e
standard) standard)
Source: Congressional Research Service (CRS). Congressional Research Service (CRS).
a. Available at https://www.dir.ca.gov/title8/5199.html. a. Available at https://www.dir.ca.gov/title8/5199.html.
b. Available at https://www.dir.ca.gov/dosh/coronavirus/ETS.html. b. Available at https://www.dir.ca.gov/dosh/coronavirus/ETS.html.
c. Available at https://www.michigan.gov//documents/leo/Final_MIOSHA_Rules_705164_7.pdf. c. Available at https://www.michigan.gov//documents/leo/Final_MIOSHA_Rules_705164_7.pdf.
d. Available at https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf. d. Available at https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf.
e. Available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-e. Available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-
Prevention-of-COVID-19-16VAC25-220-1.15.2021.pdf. Prevention-of-COVID-19-16VAC25-220-1.15.2021.pdf.
f. f.
Oregon OSHA is required to consult with state agencies and other stakeholders to determine when the Oregon OSHA is required to consult with state agencies and other stakeholders to determine when the
permanent rules can be amended or repealed, with the first of these consultations to occur no later than permanent rules can be amended or repealed, with the first of these consultations to occur no later than
July 2021. After the first consultations, ongoing consultations are required every two months until the rules July 2021. After the first consultations, ongoing consultations are required every two months until the rules
are repealed. are repealed.
g. Within 14 days of expiration of the governor’s COVID-19 state of emergency and the commissioner of g. Within 14 days of expiration of the governor’s COVID-19 state of emergency and the commissioner of
health’s COVID-19 declaration of public emergency, the Virginia Safety and Health Codes Board must meet health’s COVID-19 declaration of public emergency, the Virginia Safety and Health Codes Board must meet
to determine if there is a continued need for the standard. to determine if there is a continued need for the standard.

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OSHA: ETS and COVID-19

Author Information

Scott D. Szymendera Scott D. Szymendera

Analyst in Disability Policy Analyst in Disability Policy

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
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