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 November 17, 2021 to December 10, 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 ~~November 17~~December 10, 2021 , 2021
(OSHA): COVID-19 Emergency Temporary
Scott D. Szymendera
Standards (ETS) on Health Care Employment
Analyst in Disability Policy Analyst in Disability Policy

and Vaccinations and Testing for Large

Employers
On June 21, 2021, the Occupational Safety and Health Administration (OSHA) promulgated an Emergency Temporary 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, the virus that causes COVID-19 in health care Standard (ETS) for the prevention of the transmission of SARS-CoV-2, the virus that causes COVID-19 in health care
employment settings.employment settings.
On November 5, 2021, OSHA promulgated an additional ETS that requires employers with 100 or more employees to require On November 5, 2021, OSHA promulgated an additional ETS that requires employers with 100 or more employees to require
that all employees either be fully vaccinated against COVID-19 by January 4, 2022, or test negative for COVID-19 weekly in that all employees either be fully vaccinated against COVID-19 by January 4, 2022, or test negative for COVID-19 weekly in
order to work onsite.order to work onsite.
On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit ordered a stay on the OSHA COVID-19 vaccination On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit ordered a stay on the OSHA COVID-19 vaccination
and testing ETS pending additional judicial review and reaffirmed this stay on November 12, 2021. and testing ETS pending additional judicial review and reaffirmed this stay on November 12, 2021.
The Occupational Safety and Health Act of 1970 (OSH Act) gives OSHA the ability to promulgate an ETS that would remain 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 in effect for up to six months without going through the normal review and comment process of ~~rulema king~~rulemaking. OSHA, . OSHA,
however, has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983. however, has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983.
The OSHA COVID-19 The OSHA COVID-19 ETS for health care employers requires health care employers to develop COVID-19 plans and ETS for health care employers requires health care employers to develop COVID-19 plans and
protect employees from COVID-19protect employees from COVID-19 exposure through health screenings, personal protective equipment (PPE), building 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 ventilation, and physical distancing and barriers. The ETS requires health care employers to remove any employees with
COVID-19COVID-19 from the workplace while providing them with certain benefits. Health care employers are not required to 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 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 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 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. requirements of OSHA’s respiratory protection standard when providing respirators to employees in certain circumstances.
The OSHA COVID-19 The OSHA COVID-19 vaccination and testing ETS requires all employers with 100 or more employees to either require all vaccination and testing ETS requires all employers with 100 or more employees to either require all
employees to be vaccinated to work onsite or permit unvaccinated employees to provide weekly negative COVID-19 tests employees to be vaccinated to work onsite or permit unvaccinated employees to provide weekly negative COVID-19 tests
and wear face coverings to work onsite. Employers must provide employees with paid time off to receive COVID-19 and wear face coverings to work onsite. Employers must provide employees with paid time off to receive COVID-19
vaccines and recover from any side effects. However, employers are not required to pay for COVID-19 tests or face vaccines and recover from any side effects. However, employers are not required to pay for COVID-19 tests or face
coverings. The vaccine and testing requirements of the ETS are effective January 4, 2022. coverings. The vaccine and testing requirements of the ETS are effective January 4, 2022.
While the COVID-19 ETS for health care employers applies only to health care employers, and the COVID-19 vaccination While the COVID-19 ETS for health care employers applies only to health care employers, and the COVID-19 vaccination
and testing ETS applies only to employers with 100 or more employeesand testing ETS applies only to employers with 100 or more employees , all employers are required to comply with the , 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 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 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 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 OSHA guidance that had required employers to record and report adverse reactions to the vaccine if vaccination was a
condition of employment.condition of employment.
The California Division of Occupational Safety and Health (Cal/OSHA), which operates California’s state occupational The California Division of Occupational Safety and Health (Cal/OSHA), which operates California’s state occupational
safety and health plan, has had an aerosol transmissible disease (ATD) standard since 2009. This standard includes, among safety and health plan, has had an aerosol transmissible disease (ATD) standard since 2009. This standard includes, among
other provisions, the requirement that employers provide covered employees with respirators, rather than surgical masks, other provisions, the requirement that employers provide covered employees with respirators, rather than surgical masks,
when these workers interact with ATDs, such as known or suspected COVID-19 cases. In addition, according to the when these workers interact with ATDs, such as known or suspected COVID-19 cases. In addition, according to the
Cal/OSHA ATD standard, certain procedures require the use of powered air purifying respirators (PAPR). Cal/OSHA has 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 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, which was later rescinded and replaced occupational safety health plan in Michigan (MIOSHA) has promulgated an ETS, which was later rescinded and replaced
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OSHA: ETS and COVID-19

with the OSHA COVID-19 with the OSHA COVID-19 ETS for health care employers, to specifically address COVID-19 in workplaces. In January ETS for health care employers, 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 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.state plan (Oregon OSHA) replaced its ETS with a permanent standard.
States with state occupational safety and health plans must adopt and enforce all OSHA standards, including the ETS for States with state occupational safety and health plans must adopt and enforce all OSHA standards, including the ETS for
health care employers and the COVID-19 vaccination and testing ETS for large employers.health care employers and the COVID-19 vaccination and testing ETS for large employers.

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

~~1 29 U.S.C. §655. T he~~ 1 29 U.S.C. §655. The provisions of the Occupational Safety and Health Act of 1970 (OSH provisions of the Occupational Safety and Health Act of 1970 (OSH Act) are extended to the Act) are extended to the
legislative branch aslegislative branch as an employer by the Congressional Accountability Act (an employer by the Congressional Accountability Act ( P.L. 104-1). P.L. 104-1).
2 29 U.S.C. 2 29 U.S.C. §654(a)(1). §654(a)(1).
3 29 U.S.C.3 29 U.S.C. §667. §667.
4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see ~~CRS~~ CRS Report Report
R43969, R43969, OSHA State Plans: In Brief, ~~with Exam ples from~~ with Examples from California and Arizona . .
5 Information on specific state plans is available from the OSHA 5 Information on specific state plans is available from the OSHA ~~website~~ website at https://www.osha.gov/stateplans. at https://www.osha.gov/stateplans.
6 Per Section 6(b)(1) of the OSH6 Per Section 6(b)(1) of the OSH Act [29 §655(b)(1)], a petition may be submitted by “Act [29 §655(b)(1)], a petition may be submitted by “ an interested person, a an interested person, a
representative of any organization of employers or employees, a nationally recognized standards-producing representative of any organization of employers or employees, a nationally recognized standards-producing
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standard or to promulgate a standard in response to a petition. OSHA may also consult with one standard or to promulgate a standard in response to a petition. OSHA may also consult with one
of the two statutory standing advisory committees—the National Advisory Committee on of the two statutory standing advisory committees—the National Advisory Committee on
Occupational Safety and Health (NACOSH) or the Advisory Committee on Construction Safety Occupational Safety and Health (NACOSH) or the Advisory Committee on Construction Safety
and Health (ACCSH)—or an ad-hoc advisory committee for assistance in developing a standard.7and Health (ACCSH)—or an ad-hoc advisory committee for assistance in developing a standard.7
Notice and Comment
OSHA’s rulemaking process for the promulgation of standards is largely governed by the OSHA’s rulemaking process for the promulgation of standards is largely governed by the
provisions of the Administrative Procedure Act (APA) and Section 6(b) of the OSH Act.8 Under provisions of the Administrative Procedure Act (APA) and Section 6(b) of the OSH Act.8 Under
the APA informal rulemaking process, federal agencies, including OSHA, are required to provide the APA informal rulemaking process, federal agencies, including OSHA, are required to provide
notice of proposed rules through the publication of a Notice of Proposed Rulemaking in the notice of proposed rules through the publication of a Notice of Proposed Rulemaking in the
Federal Register and to provide the public a period of time to comment on the proposed rules. and to 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 In addition to the APA and OSH Act, other federal laws that ~~general y~~generally apply to OSHA rulemaking apply to OSHA rulemaking
include the Paperwork Reduction Act,11 Regulatory Flexibility Act,12 Congressional Review include the Paperwork Reduction Act,11 Regulatory Flexibility Act,12 Congressional Review
Act,13 Information Quality Act,14 and Act,13 Information Quality Act,14 and ~~Smal~~ Small Business Regulatory Enforcement Fairness Act Business Regulatory Enforcement Fairness Act
(SBREFA).15 Also, Executive Order 12866, issued by President Clinton in 1993, requires (SBREFA).15 Also, Executive Order 12866, issued by President Clinton in 1993, requires

organization, the Secretary of Health and Human Servicesorganization, the Secretary of Health and Human Services (HHS), the National Institute for Occupational Safety and (HHS), the National Institute for Occupational Safety and
Health, or a state or political subdivision.” Health, or a state or political subdivision.”
7 7 ~~T he~~The National Advisory Committee on Occupational Safety and Health (NACOSH) National Advisory Committee on Occupational Safety and Health (NACOSH) ~~was established~~ was established by Section 7(a) of by Section 7(a) of
the OSHthe OSH Act [29 U.S.C.Act [29 U.S.C. §656(a)]. §656(a)]. ~~T he~~The Advisory Committee on Advisory Committee on ~~Constr uction~~Construction Safety and Health (ACCSH) Safety and Health (ACCSH) was was
establishedestablished by Section 107 of the Contract Work Hours and Safety Act (P.L. 87by Section 107 of the Contract Work Hours and Safety Act (P.L. 87 -581). Section 7(b) of the OSH Act -581). Section 7(b) of the OSH Act
provides OSHAprovides OSHA the authority to establish additional advisory committees. the authority to establish additional advisory committees.
8 8 ~~T he~~The Administrative Procedure Act (APA) is codified Administrative Procedure Act (APA) is codified at 5 U.S.C.at 5 U.S.C. §§500-596. For detailed information on federal §§500-596. For detailed information on federal
agency rulemaking and the APA, see CRSagency rulemaking and the APA, see CRS Report RL32240, Report RL32240, The Federal ~~Rulem aking~~Rulemaking Process: An Overview. .
9 29 U.S.C. 9 29 U.S.C. §655(b). §655(b).
10 29 U.S.C10 29 U.S.C §655(e). §655(e).
11 44 U.S.C.11 44 U.S.C. §§3501-3520. §§3501-3520.
12 5 U.S.C.12 5 U.S.C. §§601-612. §§601-612.
13 5 U.S.C.13 5 U.S.C. §§801-808. §§801-808.
14 44 U.S.C.14 44 U.S.C. §3516 note. §3516 note.
15 5 U.S.C.15 5 U.S.C. §601 note. For information on these additional laws that apply to OSHA rulemaking, see U.S.§601 note. For information on these additional laws that apply to OSHA rulemaking, see U.S. Government Government
Accountability Office (GAO),Accountability Office (GAO), Workplace Safety and Health: Multiple Challenges Lengthen OSHA’s Standard Setting , ,
GAO-12-330, April 2012, Appendix II, at https://www.gao.gov/products/GAO-12-330 (hereinafter cited as GAO-12-GAO-12-330, April 2012, Appendix II, at https://www.gao.gov/products/GAO-12-330 (hereinafter cited as GAO-12-
330, 330, Workplace Safety and Health). ).
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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 OSHA rulemaking for new standards has ~~historical y~~historically been a relatively been a relatively time-consuming process. time-consuming process.
In 2012, at the request of Congress, the Government Accountability Office (GAO) reviewed 59 In 2012, at the request of Congress, the Government Accountability Office (GAO) reviewed 59
significant OSHAsignificant OSHA standards promulgated between 1981 (after the enactments of the Paperwork standards promulgated between 1981 (after the enactments of the Paperwork
Reduction Act and Regulatory FlexibilityReduction Act and Regulatory Flexibility Act) and 2010.17 For these standards, OSHA’s average Act) and 2010.17 For these standards, OSHA’s average
time between beginning formal consideration of the standard—either through publishing a time between beginning formal consideration of the standard—either through publishing a
Request for Information or Advance Notice of Proposed Rulemaking in the Request for Information or Advance Notice of Proposed Rulemaking in the Federal Register or or
placing the rulemaking on its semiannual regulatory agenda—and promulgation of the standard placing the rulemaking on its semiannual regulatory agenda—and promulgation of the standard
was 93 months (7 years, 9 months). Once the Notice of Proposed Rulemaking was published for was 93 months (7 years, 9 months). Once the Notice of Proposed Rulemaking was published for
these 59 standards, the average time until promulgation of the standard was 39 months (3 years, 3 these 59 standards, the average time until promulgation of the standard was 39 months (3 years, 3
months). months).
In 2012, OSHA’s Directorate of Standards and Guidance published a flowchart of the OSHA In 2012, OSHA’s Directorate of Standards and Guidance published a flowchart of the OSHA
rulemaking process on the agency’s website.18 This flowchart includes estimated duration ranges rulemaking process on the agency’s website.18 This flowchart includes estimated duration ranges
for a variety of rulemaking actions, beginning with pre-rule activities—such as developing the for a variety of rulemaking actions, beginning with pre-rule activities—such as developing the
idea for the standard and meeting with stakeholders—and ending with promulgation of the idea for the standard and meeting with stakeholders—and ending with promulgation of the
standard. The flowchart also includes an estimated duration range for post-promulgation standard. The flowchart also includes an estimated duration range for post-promulgation
activities, such as judicial review. The estimated time from the start of preliminary rulemaking to activities, such as judicial review. The estimated time from the start of preliminary rulemaking to
the promulgation of a standard ranges from 52 months (4 years, 4 months) to 138 months (11 the promulgation of a standard ranges from 52 months (4 years, 4 months) to 138 months (11
years, 6 months). After a Notice of Proposed Rulemaking is published in the years, 6 months). After a Notice of Proposed Rulemaking is published in the Federal Register, the , the
estimated length of time until the standard is promulgated ranges from 26 months (2 years, 2 estimated length of time until the standard is promulgated ranges from 26 months (2 years, 2
months) to 63 months (5 years, 3 months)months) to 63 months (5 years, 3 months). Table 1 provides OSHA’s estimated time lines for six provides OSHA’s estimated time lines for six
major pre-rulemaking and rulemaking activities leading to the promulgation of a standard. major pre-rulemaking and rulemaking activities leading to the promulgation of a standard.
Table 1. OSHA Rulemaking Process: Estimated Durations of Activities
Stage
Activities
Estimated Duration
1 1
Preliminary Preliminary rulemaking activities rulemaking activities
12-36 months 12-36 months
2 2
Developing the proposed rule Developing the proposed rule
12-36 months 12-36 months
3 3
Publishing the Notice of Proposed Rulemaking Publishing the Notice of Proposed Rulemaking (NPRM) (NPRM)
2-3 months 2-3 months
4 4
Developing and analyzing the rulemaking Developing and analyzing the rulemaking record,record, including public comments including public comments
and hearings and hearings
6-24 months 6-24 months
5 5
Developing the final rule, including Office of Information and Regulatory Developing the final rule, including Office of Information and Regulatory
Affairs (OIRA) submission Affairs (OIRA) submission
18-36 months 18-36 months
6 6
Publishing the final rule (promulgating the new standard) Publishing the final rule (promulgating the new standard)
2-3 months 2-3 months
Total estimated Total estimated ~~duration~~
duration 52-138 months 52-138 months
Estimated duration from Estimated duration from NPRM to final rule NPRM to final rule
26-63 months 26-63 months
Source: CongressionalCongressional Research ServiceResearch Service (CRS) with data from(CRS) with data from Occupational Safety and Health Administration Occupational Safety and Health Administration
(OSHA), Directorate(OSHA), Directorate of Standards and Guidance,of Standards and Guidance, The OSHA Rulemaking Process,, October 15, 2012. October 15, 2012.

16 Executive Order 12866, “Regulatory Planning and Review,” 5816 Executive Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, October 4, 1993. 51735, October 4, 1993.
17 GAO-12-330, 17 GAO-12-330, Workplace Safety and Health. .
18 OSHA,18 OSHA, Directorate of Standards and Guidance,Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012. , October 15, 2012.
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Judicial Review
Both the APA and the OSH Act provide for judicial review of OSHA standards. Section 7(f) of Both the APA and the OSH Act provide for judicial review of OSHA standards. Section 7(f) of
the OSH Act provides that any person who is “adversely affected” by a standard may file, within the OSH Act provides that any person who is “adversely affected” by a standard may file, within
60 days of its promulgation, a petition 60 days of its promulgation, a petition ~~chal enging~~challenging the standard with the U.S. Court of Appeals the standard with the U.S. Court of Appeals
for the circuit in which the person lives or maintains his or her principal place of business.19 A for the circuit in which the person lives or maintains his or her principal place of business.19 A
petition for judicialpetition for judicial review does not review does not ~~automatical y~~automatically stay the implementation or enforcement of the stay the implementation or enforcement of the
standard. However, the court may order such a stay. OSHA estimates that post-promulgation standard. However, the court may order such a stay. OSHA estimates that post-promulgation
activities, including judicialactivities, including judicial review, can take between four and 12 months after the standard is 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 immediatelyhearings. An ETS is immediately effective upon publication in the effective upon publication in the Federal Register. Upon . Upon
promulgation of an ETS, OSHA is required to begin the full rulemaking process for a permanent promulgation of an ETS, OSHA is required to begin the full rulemaking process for a permanent
standard with the ETS serving as the proposed standard for this rulemaking. An ETS is 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 agents determined to be toxic or ~~physical y~~physically harmful or from new hazards, and harmful or from new hazards, and
 that such emergency standard is necessary to protect employees from such  that such emergency standard is necessary to protect employees from such
danger. danger.
Grave Danger Determination
The term The term grave danger, used in the first mandatory determination for an ETS, is not defined in , used in the first mandatory determination for an ETS, is not defined in
statute or regulation. The legislative history demonstrates the intent of Congress that the ETS statute or regulation. The legislative history demonstrates the intent of Congress that the ETS
process “not be utilized to circumvent the regular standard-setting process,” but the history is process “not be utilized to circumvent the regular standard-setting process,” but the history is
unclear as to how Congress intended the term grave danger to be defined.22unclear as to how Congress intended the term grave danger to be defined.22

~~19 29 U.S.C.~~ 19 29 U.S.C. §655(f). §655(f).
20 OSHA,20 OSHA, Directorate of Standards and Guidance,Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012. , October 15, 2012.
21 29 U.S.C21 29 U.S.C §655(c)(2). §655(c)(2). ~~T he~~The statute is not clear on what happens if OSHA statute is not clear on what happens if OSHA is unableis unable to promulgate a permanent standard to promulgate a permanent standard
within six months. For additional information see the section “within six months. For additional information see the section “ ETS Duration” later in this report.ETS Duration” later in this report.
22 U.S.22 U.S. Congress, Senate Labor and Public Welfare, Subcommittee on Labor, Congress, Senate Labor and Public Welfare, Subcommittee on Labor, Legislative History of the Occupational
Safety and Health Act of 1970 (S. 2193S. 2193, P.L. 91-596), committee print, prepared by Subcommittee on Labor, , committee print, prepared by Subcommittee on Labor, ~~91 st~~91st
Cong., 1 sess.,Cong., 1 sess., June 1971, 52-531 (Washington: GPO, 1971), p. 1218. June 1971, 52-531 (Washington: GPO, 1971), p. 1218.
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In addition, although the federal courts have ruled on In addition, although the federal courts have ruled on ~~chal enges~~challenges to previous ETS promulgations, to previous ETS promulgations,
the courts have provided no clear guidance as to what constitutes a grave danger. In 1984, the the courts have provided no clear guidance as to what constitutes a grave danger. In 1984, the
U.S. Court of Appeals for the Fifth Circuit in U.S. Court of Appeals for the Fifth Circuit in Asbestos Info. Ass’n v. OSHA issued a stay and issued a stay and
invalidatedinvalidated OSHA’s November 1983 ETS lowering the permissible exposure limit for asbestos in OSHA’s November 1983 ETS lowering the permissible exposure limit for asbestos in
the workplace.23 In its decision, the court stated that “gravity of danger is a policy decision the workplace.23 In its decision, the court stated that “gravity of danger is a policy decision
committed to OSHA, not to the courts.”24 The court, however, ultimately rejected the ETS, in part committed to OSHA, not to the courts.”24 The court, however, ultimately rejected the ETS, in part
on the grounds that OSHA did not provide sufficient support for its claim that 80 workers would on the grounds that OSHA did not provide sufficient support for its claim that 80 workers would
ultimately die because of exposures to asbestos during the six-month life of the ETS. ultimately die because of exposures to asbestos during the six-month life of the ETS.
Necessity Determination
In addition to addressing a grave danger to employees, an ETS must also be In addition to addressing a grave danger to employees, an ETS must also be necessary to protect to protect
employees from that danger. In employees from that danger. In Asbestos Info. Ass’n, the court invalidated the asbestos ETS for , the court invalidated the asbestos ETS for
the additionalthe additional reason that OSHA had not demonstrated the necessity of the ETS. The court cited, reason that OSHA had not demonstrated the necessity of the ETS. The court cited,
among other factors, the duplication between the respirator requirements of the ETS and OSHA’s among other factors, the duplication between the respirator requirements of the ETS and OSHA’s
existing standards requiring respirator use. The court dismissed OSHA’s argument that the ETS existing standards requiring respirator use. The court dismissed OSHA’s argument that the ETS
was necessary because the agency felt that the existing respiratory standards were “unenforceable was necessary because the agency felt that the existing respiratory standards were “unenforceable
absent actual monitoring to show that ambient asbestos particles are so far above the permissible absent actual monitoring to show that ambient asbestos particles are so far above the permissible
limit that respirators are necessary to bring employees’ exposure within the PEL of 2.0 f/cc.”25 limit that respirators are necessary to bring employees’ exposure within the PEL of 2.0 f/cc.”25
The court determined that “fear of a successful judicial The court determined that “fear of a successful judicial ~~chal enge~~challenge to enforcement of OSHA’s to enforcement of OSHA’s
permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in
OSHA’s enforcement arsenal.”26OSHA’s enforcement arsenal.”26
In 2006, the agency considered a petition from the United Food and Commercial Workers In 2006, the agency considered a petition from the United Food and Commercial Workers
(UFCW) and International Brotherhood of Teamsters (IBT) for an ETS on diacetyl, a compound (UFCW) and International Brotherhood of Teamsters (IBT) for an ETS on diacetyl, a compound
then commonly used as an artificial butter flavoring in microwave popcorn and a flavoring in 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 OSHAother food and beverage products. The UFCW and IBT petitioned OSHA for the ETS after the for the ETS after the
National Institute for Occupational Safety and Health (NIOSH) and other researchers found that National Institute for Occupational Safety and Health (NIOSH) and other researchers found that
airborne exposure to diacetyl was linked to the lung disease airborne exposure to diacetyl was linked to the lung disease bronchiolitis obliterans, now , now
commonly referred to as “popcorn lung.”27 According to GAO’s 2012 report on OSHA’s commonly referred to as “popcorn lung.”27 According to GAO’s 2012 report on OSHA’s
standard-setting processes, OSHA informed GAO that although the agency may have been able to standard-setting processes, OSHA informed GAO that although the agency may have been able to
issue an ETS based on the grave danger posed by diacetyl, the actions taken by the food and issue an ETS based on the grave danger posed by diacetyl, the actions taken by the food and
beverage industries, including reducing or removing diacetyl from products, made it less likely beverage industries, including reducing or removing diacetyl from products, made it less likely
that the necessity requirement could be met.28that the necessity requirement could be met.28
ETS Duration
Section 6(c)(2) of the OSH Act provides that an ETS is effective until superseded by a permanent Section 6(c)(2) of the OSH Act provides that an ETS is effective until superseded by a permanent
standard promulgated pursuant to the normal rulemaking provisions of the OSH Act. Section standard promulgated pursuant to the normal rulemaking provisions of the OSH Act. Section
6(c)(3) of the OSH Act requires OSHA to promulgate a permanent standard within six months of 6(c)(3) of the OSH Act requires OSHA to promulgate a permanent standard within six months of

23 727 F.2d at 415, 425-427 (5th Cir. 1984). 23 727 F.2d at 415, 425-427 (5th Cir. 1984).
24 727 F.2d at 427 (5th Cir. 1984). 24 727 F.2d at 427 (5th Cir. 1984).
25 727 F.2d at 427 (5th Cir. 1984). 25 727 F.2d at 427 (5th Cir. 1984). ~~T he ET S~~The ETS mandated a permissible exposure limit (PEL) for asbestos of two asbestos mandated a permissible exposure limit (PEL) for asbestos of two asbestos
fibers per cubicfibers per cubic centimeter of air (2.0 f/cc). centimeter of air (2.0 f/cc).
26 727 F.2d at 427 (5th Cir. 1984). 26 727 F.2d at 427 (5th Cir. 1984).
27 See,27 See, for example, Centers for Disease Control and Prevention (CDC): National Institute for Occupationalfor example, Centers for Disease Control and Prevention (CDC): National Institute for Occupational Safety and Safety and
Health (NIOSH), Health (NIOSH), NIOSH Alert: Preventing Lung Disease in Workers who Use or Make Flavorings, DHHS, DHHS (NIOSH) (NIOSH)
publication no. 2004-110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/. publication no. 2004-110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/.
28 GAO-12-330, 28 GAO-12-330, Workplace Safety and Health. .
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promulgating the ETS. As shown earlier in this report, six months is promulgating the ETS. As shown earlier in this report, six months is ~~wel~~ well outside of historical and outside of historical and
currently expected time frames for developing and promulgating a standard under the notice and currently expected time frames for developing and promulgating a standard under the notice and
comment provisions of the APA and OSH Act, as comment provisions of the APA and OSH Act, as ~~wel~~ well as under other relevant federal laws and as under other relevant federal laws and
executive orders. This dichotomy between the statutory mandate to promulgate a standard and the executive orders. This dichotomy between the statutory mandate to promulgate a standard and the
time lines that, based on historical precedent, other provisions in the OSH Act might time lines that, based on historical precedent, other provisions in the OSH Act might ~~realistical y~~realistically
require for such promulgation raises the question of whether or not OSHA could extend an ETS’s require for such promulgation raises the question of whether or not OSHA could extend an ETS’s
duration without going through the normal rulemaking process. The statute and legislative history duration without going through the normal rulemaking process. The statute and legislative history
do not clearly address this question. do not clearly address this question.
OSHA has used its ETS authority sparingly in its history. As shown i OSHA has used its ETS authority sparingly in its history. As shown in Table A-1, in the 11 times in the 11 times
OSHA has issued an ETS, the courts have fully vacated or stayed the ETS in four cases and OSHA has issued an ETS, the courts have fully vacated or stayed the ETS in four cases and
~~partial y~~partially vacated the ETS in one case.29 In five of the seven ETSs that were not vacated the ETS in one case.29 In five of the seven ETSs that were not ~~chal enged~~challenged, were , were
fully or fully or ~~partial y~~ partially upheld by the courts, or are upheld by the courts, or are ~~stil~~ still active, OSHA issued a permanent standard active, OSHA issued a permanent standard
either within the six months required by the statute or within several months of the six-month 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 the ETS.30 Each of these five cases, period and always within one year of the promulgation of the ETS.30 Each of these five cases,
however, occurred before 1980, after which a combination of additional federal laws and court however, occurred before 1980, after which a combination of additional federal laws and court
decisions added additional procedural requirements to the OSHA rulemaking process. OSHA did decisions added additional procedural requirements to the OSHA rulemaking process. OSHA did
not attempt to extend the ETS’s expiration date in any of these cases. not attempt to extend the ETS’s expiration date in any of these cases.
Although the courts have not ruled directly on an attempt by OSHA to solely extend the life of an Although the courts have not ruled directly on an attempt by OSHA to solely extend the life of an
ETS, in 1974, the U.S. Court Appeals for the Fifth Circuit held in ETS, in 1974, the U.S. Court Appeals for the Fifth Circuit held in Florida Peach Growers Ass’n v.
United States Department of Labor that OSHA was within its authority to amend an ETS without that OSHA was within its authority to amend an ETS without
going through the normal rulemaking process.31 The court stated that “it is inconceivable that going through the normal rulemaking process.31 The court stated that “it is inconceivable that
Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency
situations, intended to limit his abilitysituations, intended to limit his ability to react to developments subsequent to his initial to react to developments subsequent to his initial
response.”32 The court also recognized the difficulty OSHA may have in promulgating a standard response.”32 The court also recognized the difficulty OSHA may have in promulgating a standard
within six months due to the notice and comment requirements of the OSH Act, stating that in the within six months due to the notice and comment requirements of the OSH Act, stating that in the
case of OSHA seeking to amend an ETS to expand its focus, “adherence to subsection (b) case of OSHA seeking to amend an ETS to expand its focus, “adherence to subsection (b)
procedures would not be in the best interest of employees, whom the Act is designed to protect. procedures would not be in the best interest of employees, whom the Act is designed to protect.
Such lengthy procedures could Such lengthy procedures could al all too easily consume too easily consume al all of the temporary standard’s six months 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 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 employment.34 The ETS requires a covered employer to create a COVID-19 plan, includes
provisions for the prevention of COVID-19 in the workplace, requires new recordkeeping in provisions for the prevention of COVID-19 in the workplace, requires new recordkeeping in

29 Mark A. Rothstein, “Substantive and Procedural Obstacles29 Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHAto OSHA Rulemaking:Rulemaking: Reproductive HazardsReproductive Hazards as an as an
Example,” Example,” Boston College Environmental Affairs Law Review, vol. 12, no. 4 (August, vol. 12, no. 4 (August 1985), p. 673. 1985), p. 673.
30 For example, OSHA30 For example, OSHA promulgated the Acrylonitrile (vinyl cyanide) promulgated the Acrylonitrile (vinyl cyanide) ~~ET S~~ETS on January 17, 1978, and the permanent on January 17, 1978, and the permanent
standard on October 3, 1978, with an effective date of November 2, 1978. standard on October 3, 1978, with an effective date of November 2, 1978. ~~T he~~The preamble to the permanent standard preamble to the permanent standard
publishedpublished in the in the Federal Register doesdoes not include information on the status of the not include information on the status of the ~~ET S~~ETS during during the time between its the time between its
expiration and the promulgation of the permanent standard. OSHA, “Occupational Exposure to Acrylonitrile (Vinyl expiration and the promulgation of the permanent standard. OSHA, “Occupational Exposure to Acrylonitrile (Vinyl
Cyanide),” 43Cyanide),” 43 Federal Register 45762, October 3, 1978. 45762, October 3, 1978.
31 489 F.2d. 120 (5th Cir. 1974). 31 489 F.2d. 120 (5th Cir. 1974).
32 489 F.2d. at 127 (5th Cir. 1974). 32 489 F.2d. at 127 (5th Cir. 1974).
33 489 F.2d. at 127 (5th Cir. 1974). 33 489 F.2d. at 127 (5th Cir. 1974).
34 OSHA,34 OSHA, “Occupational Exposure to COVID-19; Emergency “Occupational Exposure to COVID-19; Emergency ~~T emporary~~Temporary Standard,” 86 Standard,” 86 Federal Register 32376, June 32376, June
21, 2021. 21, 2021.
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COVID-19 cases, and (in certain circumstances) permits employers to forgo the medical 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 evaluation and fit-testing requirements of the OSHA respiratory protection standard. The ETS
became effective with its publication in the became effective with its publication in the Federal Register, with covered employers required to , with covered employers required to
comply with comply with al all provisions of the ETS—with the exceptions of the physical distancing, building provisions of the ETS—with the exceptions of the physical distancing, building
ventilation,ventilation, training, and mini-respiratory-protection provisions—by July 6, 2021. Covered training, and mini-respiratory-protection provisions—by July 6, 2021. Covered
employers must comply with the physical distancing, building ventilation, training, and mini-employers must comply with the physical distancing, building ventilation, training, and mini-
respiratory-protection provisions by July 21, 2021. While the respiratory-protection provisions by July 21, 2021. While the Federal Register announcement announcement
does not specify a specific duration for the COVID-19 ETS, per the OSH Act, an ETS is effective 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 until replaced by a permanent standard within six months. The publication of the COVID-19 ETS
in the in the Federal Register also included a request for comments on the ETS and on whether the ETS 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 should become a permanent standard. In the preamble to the ETS, OSHA states that al all state plans state plans
must adopt the ETS within 30 days of its publication and notify OSHA within 15 days of the 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.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 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 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 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 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 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 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 COVID-19.”37 On July 8, 2021, National Nurses United voluntarily withdrew its petition for
~~judicial~~ judicial review of the COVID-19 ETS. review of the COVID-19 ETS.
Justification for the COVID-19 ETS for Health Care Employers
In the preamble to the ETS published in the In the preamble to the ETS published in the Federal Register, OSHA provides a justification for , OSHA provides a justification for
the ETS by addressing the requirements in the OSH Act that employees are exposed to grave 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 danger from exposure to SARS-CoV-2 and that an ETS is necessary to protect employees from
such danger. such danger.
Grave Danger Determination
In its justification for a COVID-19 ETS for health care employment, OSHA states that the agency 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 “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 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 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: standard required for an ETS rests on evidence and research on the following factors:
 the health consequences of COVID-19, including mortality and short-term and  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 long-term health consequences from COVID-19, even in cases determined by the
Centers for Disease Control and Prevention (CDC) to be “mild;” Centers for Disease Control and Prevention (CDC) to be “mild;”

~~35 OSHA,~~ 35 OSHA, “Occupational Exposure to COVID-19,” p. 32560. “Occupational Exposure to COVID-19,” p. 32560.
36 National Nurses United v. OSHA,36 National Nurses United v. OSHA, Docket No. 21-71142 (9th Cir. June 24, 2021). Docket No. 21-71142 (9th Cir. June 24, 2021).
37 United Food and Commercial Workers and American Federation of Labor and Congress37 United Food and Commercial Workers and American Federation of Labor and Congress of Industrial Organizations of Industrial Organizations
v. OSHA,v. OSHA, et al., Docket No. 21-1143 (D.C. Cir. June 24, 2021). et al., Docket No. 21-1143 (D.C. Cir. June 24, 2021).
38 OSHA, 38 OSHA, “Occupational Exposure to COVID-19,” p. 32381. “Occupational Exposure to COVID-19,” p. 32381.
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 the elevated risk of COVID-19 transmission in the workplace due to common  the elevated risk of COVID-19 transmission in the workplace due to common
elements of workplaces such as shared work spaces; and elements of workplaces such as shared work spaces; and
 the risk of COVID-19 transmission in health care settings where known or  the risk of COVID-19 transmission in health care settings where known or
suspected infectious patients are receiving medical treatment.39 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 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 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 those covering respiratory protection, personal protective equipment (PPE), sanitation, and hazard
communication—do not provide sufficient protection to health care employees exposed to known 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 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 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 guidance is voluntary and not enforceable. OSHA claims that there is a need for a uniform set of
requirements for health care employers in requirements for health care employers in al all states regardless of whether the state has adopted its states regardless of whether the state has adopted its
own COVID-19 standards and cites a petition filed by the occupational safety consulting firm 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 ORCHSE Strategies requesting an ETS as evidence that some employers favor the uniform set of
national requirements provided by an ETS.40national 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 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 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 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 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 inabilityof the general duty clause is also limited by the inability to require specific hazard abatements and to require specific hazard abatements and
the inabilitythe inability to assess higher civil monetary penalties for egregious or to assess higher civil monetary penalties for egregious or ~~wil ful~~willful violations. OSHA violations. OSHA
also states that the general duty clause does not provide complete protection at multi-employer 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 worksites, such as hospitals, where several employers may control workplace safety conditions
and thus may be liableand thus may be liable for violations. for violations.
Vaccines and the Need for an ETS
OSHA argues in the preamble to its ETS that the development, availability,OSHA argues in the preamble to its ETS that the development, availability, ~~and overal~~ and overall success of success of
the COVID-19 vaccines in the United States do not obviate the need for an ETS but rather serve 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 as evidence of the need for an ETS. OSHA states that it has a statutory responsibility to protect al
all workers, including those who are unvaccinated, regardless of the reason for those workers’ 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, 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 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 from certain requirements in the ETS and by requiring that employers provide paid time off for
employees to receive the COVID-19 vaccine, thus eliminating what the agency cites as a major 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 barrier to vaccination.42 In addition, OSHA asserts that the ETS ~~wil~~ will provide additional provide additional
protections to non-vaccinated employees, including those who are unable to be vaccinated due to protections to non-vaccinated employees, including those who are unable to be vaccinated due to

~~39 OSHA,~~ 39 OSHA, “Occupational Exposure to COVID-19,” pp. 32382-32383. “Occupational Exposure to COVID-19,” pp. 32382-32383.
40 OSHA,40 OSHA, “Occupational Exposure to COVID-19,” p. 32422.“Occupational Exposure to COVID-19,” p. 32422.
41 OSHA,41 OSHA, “Occupational Exposure to COVID-19,” p. 32418. “Occupational Exposure to COVID-19,” p. 32418.
42 OSHA,42 OSHA, “Occupational Exposure to COVID-19,” p. 32423. “Occupational Exposure to COVID-19,” p. 32423.
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medical or other reasons and those with compromised immune systems that may limit the medical or other reasons and those with compromised immune systems that may limit the
effectiveness of the vaccine. effectiveness of the vaccine. ~~Final y~~Finally, OSHA states that while more evidence is needed to , OSHA states that while more evidence is needed to
determine the determine the ~~overal~~ overall effectiveness and duration of the effectiveness of the vaccines and the effectiveness and duration of the effectiveness of the vaccines and the
impact of new variants of COVID-19 on vaccine effectiveness, the ETS impact of new variants of COVID-19 on vaccine effectiveness, the ETS ~~wil~~ will continue to provide continue to provide
protections to workers regardless of vaccine status or efficacy. protections to workers regardless of vaccine status or efficacy.
Employers Covered by the COVID-19 ETS for Health Care
Employers
The COVID-19 ETS for health care workers applies to The COVID-19 ETS for health care workers applies to al all settings where employees provide settings where employees provide
health care services or health care support services, unless exempted in the ETS or otherwise health care services or health care support services, unless exempted in the ETS or otherwise
exempt from OSHA coverage.43 exempt from OSHA coverage.43 Health care services is defined in the ETS as “services that are is defined in the ETS as “services that are
provided to individualsprovided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency by professional healthcare practitioners (e.g., doctors, nurses, emergency
medical personnel, oral health professionals) for the purpose of promoting, maintaining, 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 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, provision of health care services and include such activities as patient admissions, food service,
facility maintenance, and housekeeping.facility maintenance, and housekeeping.
Employers in the following workplace settings and situations are exempt from the ETS: 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 provision of first aid other than by a licensed health care worker;
 the dispensing of prescriptions in retail pharmacies;  the dispensing of prescriptions in retail pharmacies;
 non-hospital ambulatory care settings where  non-hospital ambulatory care settings where al all non-employees are screened non-employees are screened
prior to entry and known or suspected COVID-19 cases are not permitted entry; prior to entry and known or suspected COVID-19 cases are not permitted entry;
  ~~wel~~ well-defined hospital ambulatory care settings where -defined hospital ambulatory care settings where al all employees are fully employees are fully
vaccinated against COVID-19 and vaccinated against COVID-19 and al all non-employees are screened prior to entry non-employees are screened prior to entry
and known or suspected COVID-19 cases are not permitted entry; and known or suspected COVID-19 cases are not permitted entry;
 home health care settings where  home health care settings where al all employees are fully vaccinated against employees are fully vaccinated against
COVID-19 and COVID-19 and al all non-employees are screened prior to entry and known or non-employees are screened prior to entry and known or
suspected COVID-19 cases are not present; suspected COVID-19 cases are not present;
 health care support services performed offsite, such as offsite laundry services;  health care support services performed offsite, such as offsite laundry services;
and and
 telehealth services without direct patient contact.45  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 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 a medical clinic inside of a workplace, the ETS applies only to the health care setting and not the
rest of the facility. Similarly,rest of the facility. Similarly, if emergency health care is provided in a non-health-care setting, 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 such as emergency medical services responding to a non-health-care facility, the ETS applies only
to the provision of the emergency health care.to the provision of the emergency health care.

43 Per Section 3(5) of the OSH43 Per Section 3(5) of the OSH Act (29 C.F.R. §652(5)), OSHAAct (29 C.F.R. §652(5)), OSHA does not have jurisdiction over the activities of state or does not have jurisdiction over the activities of state or
local governments as employers. State and local government employers must, however, be covered by any state local governments as employers. State and local government employers must, however, be covered by any state
occupational safety and health plan approved pursuant to Section 18 of the OSHoccupational safety and health plan approved pursuant to Section 18 of the OSH Act (29 U.S.C.Act (29 U.S.C. ~~§667). Because~~ §667). Because state state
occupational safety and health plans must be at least asoccupational safety and health plans must be at least as effective as federal OSHAeffective as federal OSHA requirements, these state and local requirements, these state and local
government employees would begovernment employees would be covered by the stricter federal OSHAcovered by the stricter federal OSHA requirements. requirements.
44 29 C.F.R. §1910.502(b). 44 29 C.F.R. §1910.502(b).
45 29 C.F.R. §1910.502(a)(2). 45 29 C.F.R. §1910.502(a)(2).
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Key Elements of the COVID-19 ETS for Health Care Employers
COVID-19 Plan
Each employer covered by the ETS is required to develop and implement a COVID-19 plan.46 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 For covered employers with 10 or more employees, the plans must be in writing. In developing
and implementing the COVID-19 plan, an employer mustand implementing the COVID-19 plan, an employer must
 assign at least one COVID-19 safety coordinator, knowledgeable in infection  assign at least one COVID-19 safety coordinator, knowledgeable in infection
control, to monitor and ensure compliance with the COVID-19 plan; control, to monitor and ensure compliance with the COVID-19 plan;
 conduct a workplace-specific hazard assessment;  conduct a workplace-specific hazard assessment;
 involve non-managerial employees and their representatives in the development  involve non-managerial employees and their representatives in the development
and implementation of the COVID-19 plan and the hazard assessment; and implementation of the COVID-19 plan and the hazard assessment;
 monitor the effectiveness and update the COVID-19 plan;  monitor the effectiveness and update the COVID-19 plan;
 address the hazards identified in the hazard assessment;  address the hazards identified in the hazard assessment;
 include policies to minimize include policies to minimize the risk of COVID-19 transmission for each the risk of COVID-19 transmission for each
employee; and employee; and
 communicate and coordinate COVID-19 prevention policies with other  communicate and coordinate COVID-19 prevention policies with other
employers at multi-employer worksites. 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 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 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 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 , updated on February 23, 2021.48
Standard and Transmission-Based Precautions
Covered employers must comply with the CDC’s guidance document Covered employers must comply with the CDC’s guidance document 2007 Guideline for
Isolation Precautions: Preventing Transmission of Infectious Agents in Healthcare Settings, as , as
updated in July 2019.49 updated in July 2019.49

46 29 C.F.R. §1910.502(c). 46 29 C.F.R. §1910.502(c).
47 29 C.F.R. §1910.502(d). 47 29 C.F.R. §1910.502(d).
48 CDC,48 CDC, Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus
DiseaseDisease 2019 (COVID-19) Pandemic, updated February2019 (COVID-19) Pandemic, updated February 23, 2021, https://www.cdc.gov/coronavirus/2019-ncov/hcp/23, 2021, https://www.cdc.gov/coronavirus/2019-ncov/hcp/
infection-control-recommendations.html. infection-control-recommendations.html.
49 CDC, 49 CDC, 2007 Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Health Care
Settings, updated, updated July 2019, https://www.cdc.gov/infectioncontrol/pdf/guidelines/isolation-guidelines-H.pdf. July 2019, https://www.cdc.gov/infectioncontrol/pdf/guidelines/isolation-guidelines-H.pdf.
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PPE50
Facemasks
Covered employers must provide employees with facemasks that are cleared by the Food and Covered employers must provide employees with facemasks that are cleared by the Food and
Drug Administration (FDA), authorized by an FDA Emergency Use Authorization (EUA), or Drug Administration (FDA), authorized by an FDA Emergency Use Authorization (EUA), or
described in an FDA enforcement policy and ensure their proper use, covering the nose and 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 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 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 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 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 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 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 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 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. 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-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. 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 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, 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 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 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 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 , as updated in July 2019.54
Aerosol-Generating Procedures
Whenever an aerosol-generating procedure is performed on a known or suspected COVID-19 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 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 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 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 room with air handling capacity designed to isolate a patient. After the aerosol-generating
procedure is completed, procedure is completed, al all surfaces and equipment in the room must be cleaned and disinfected. 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 “50 For additional information on OSHA’s standards for respiratory PPE, see the section “ OSHA Respiratory Protection OSHA Respiratory Protection
Standard”Standard” later in this report.later in this report.
51 29 C.F.R. §1910.502(f)(1). 51 29 C.F.R. §1910.502(f)(1).
52 29 C.F.R. §1910.134. 52 29 C.F.R. §1910.134.
53 29 C.F.R. §1910.502(f)(3) note 1. 53 29 C.F.R. §1910.502(f)(3) note 1.
54 CDC,54 CDC, 2007 Guideline for Isolation Precautions. .
55 29 C.F.R. §502(g). 55 29 C.F.R. §502(g).
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Physical Distancing
Except in brief situations in which people are moving, such as in a Except in brief situations in which people are moving, such as in a ~~hal way~~hallway, covered employers , covered employers
must ensure that employees are separated from must ensure that employees are separated from al all other persons by at least six feet when indoors 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 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 feet of distancing is not feasible, covered employers must ensure as much separation between
employees and other persons as possible. employees and other persons as possible.
Physical Barriers
In fixed workspaces where six feet of separation between employees and other persons is not 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 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 fixed barriers that are cleanable or disposable and sufficiently sized to block the pathway between
the persons’ faces.57 the persons’ faces.57
Cleaning and Disinfection
In patient care areas and resident rooms and on medical devices and equipment, covered 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 employers must conduct cleaning and disinfection in accordance with the CDC’s guidance
documents documents Interim Infection Prevention and Control Recommendations for Healthcare Personnel
During the Coronavirus Disease 2019 (COVID-19) Pandemic, updated February 23, 2021,58 and , updated February 23, 2021,58 and
Guidelines for Environmental Infection Control in Health-Care Facilities, updated July 2019.59 , updated July 2019.59
In In al all other areas, the covered employer must clean high-touch surfaces and equipment at least 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 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 the workplace in the previous 24 hours, the covered employer must clean and disinfect any areas
likelylikely to have been contaminated in accordance with the CDC’s guidance document 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, , updated April 5,
2021.61 2021.61
Covered employers must also provide hand sanitizer that is at least 60% alcohol or accessible Covered employers must also provide hand sanitizer that is at least 60% alcohol or accessible
hand washing facilities.62 hand washing facilities.62
Building Ventilation
Covered employers who own or control buildings with existing heating, ventilation, and air Covered employers who own or control buildings with existing heating, ventilation, and air
conditioning (HVAC)conditioning (HVAC) systems must ensure that systems must ensure that
 the HVAC  the HVAC system is used in accordance with the manufacturer’s instructions and system is used in accordance with the manufacturer’s instructions and
design specifications; design specifications;

56 29 C.F.R. §502(h). 56 29 C.F.R. §502(h).
57 29 C.F.R. §502(i). 57 29 C.F.R. §502(i).
58 CDC,58 CDC, Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus
Disease 2019 (COVID-19) ~~Pandem ic~~Pandemic. .
59 29 C.F.R. §502(j)(1); CDC, 59 29 C.F.R. §502(j)(1); CDC, Guidelines for Environmental Infection Control in Health-Care Facilities, updated, updated July July
2019, https://www.cdc.gov/infectioncontrol/pdf/guidelines/environmental-guidelines-P.pdf. 2019, https://www.cdc.gov/infectioncontrol/pdf/guidelines/environmental-guidelines-P.pdf.
60 29 C.F.R. §502(j)(2). 60 29 C.F.R. §502(j)(2).
61 CDC,61 CDC, COVID-19: Cleaning and Disinfecting Your Facility; Every Day and When Someone Is Sick , updated April 5, , updated April 5,
2021, https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html. 2021, https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html.
62 29 C.F.R. §502(j)(3). 62 29 C.F.R. §502(j)(3).
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 the amount of outside air circulating through the system and the number of air  the amount of outside air circulating through the system and the number of air
changes per hour are maximized, to the extent possible; changes per hour are maximized, to the extent possible;
  al all air filters are rated Minimum Efficiency Reporting Valueair filters are rated Minimum Efficiency Reporting Value (MERV) 13 or (MERV) 13 or
higher or, if MERV-13-rated filters are not compatible with the HVAC higher or, if MERV-13-rated filters are not compatible with the HVAC system, system,
the highest compatible MERV-rated filters are used; the highest compatible MERV-rated filters are used;
  al all air filters are maintained and replaced as necessary; and air filters are maintained and replaced as necessary; and
  al all intake ports for outside air are cleaned and maintained.63 intake ports for outside air are cleaned and maintained.63
Covered employers with existing AIIRs must maintain and operate these rooms in accordance Covered employers with existing AIIRs must maintain and operate these rooms in accordance
with design and construction criteria.64with design and construction criteria.64
Health Screening and Medical Management
Screening
Covered employers must screen Covered employers must screen al all employees for COVID-19 before each workday and work 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-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. 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: Covered employers must require employees to notify them when they:
 test positive for or is diagnosed with COVID-19;  test positive for or is diagnosed with COVID-19;
 are told by health care providers that they are suspected to have 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  are experiencing an unexplained loss of taste and/or ~~smel~~ smell; or ; or
 are experiencing a fever of 100.4 degrees Fahrenheit or more and a new  are experiencing a fever of 100.4 degrees Fahrenheit or more and a new
unexplained cough with shortness of breath.66 unexplained cough with shortness of breath.66
Employer ~~Notification~~ Notification to Employees of COVID-19 in the Workplace
Covered employers must make the following notifications within 24 hours of receiving Covered employers must make the following notifications within 24 hours of receiving
information that a COVID-19 case was in the workplace: information that a COVID-19 case was in the workplace:
 notify each employee who was not wearing a respirator and other appropriate  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 PPE and was in close contact with the COVID-19 case with the dates the contact
occurred; and occurred; and
 notify  notify al all other employees and other employers with employees in the facility other employees and other employers with employees in the facility
who were not wearing respirators and other appropriate PPE and were in a who were not wearing respirators and other appropriate PPE and were in a ~~wel~~ well--
defined area of the workplace (such as a patient care floor) with the COVID-19 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 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 asymptomatic, submitted a sample for testing and lasting until the case was
isolated.67 isolated.67

63 29 C.F.R. §502(k)(1). 63 29 C.F.R. §502(k)(1).
64 29 C.F.R. §502(k)(2). 64 29 C.F.R. §502(k)(2).
65 29 C.F.R. §502(l)(1). 65 29 C.F.R. §502(l)(1).
66 29 C.F.R. §502(l)(2). 66 29 C.F.R. §502(l)(2).
67 29 C.F.R. §502(l)(3). 67 29 C.F.R. §502(l)(3).
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Notifications must be made without revealing the name, contact information, or occupation of 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 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 routinely provides services to known or suspected COVID-19 cases, such as COVID-19 testing
centers, emergency departments, and inpatient COVID-19 wards. centers, emergency departments, and inpatient COVID-19 wards.
Medical Removal
Covered employers must immediately remove from the workplace any employee who tests 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 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 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 , 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 , updated February 16, 2021.69
Covered employers must immediately remove from the workplace any employee who: 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 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  is experiencing an unexplained loss of taste and/or ~~smel~~ smell, or , or
 is experiencing a fever of 100.4 degrees Fahrenheit or more and a new  is experiencing a fever of 100.4 degrees Fahrenheit or more and a new
unexplained cough with shortness of breath.70 unexplained cough with shortness of breath.70
Covered employers may make return-to-work decisions on such employees in accordance with 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 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 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 no cost to the employee. If the employee refuses to be tested, he or she forfeits al all medical medical
removal protections (discussed in the next section of this report) and must remain out of work 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 until the covered employer makes a return to work determination in accordance with the two
CDC guidance documents referenced above. CDC guidance documents referenced above.
Covered employers are required to immediately Covered employers are required to immediately remove from the workplace any employee who remove from the workplace any employee who
was not wearing a respirator and other appropriate PPE and was in close contact with a COVID-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 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 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 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 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 refuses to be tested, he or she forfeits al all medical removal protections (discussed in the next medical removal protections (discussed in the next
section of this report). A covered employer is not required to remove from the workplace an 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 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 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. fully vaccinated against COVID-19 or had COVID-19 and recovered in the past three months.

~~68 CDC,~~ 68 CDC, Isolation If You Are Sick; Separate Yourself from Others If You Have COVID-19, updated February, updated February 18, 2021, 18, 2021,
https://www.osha.gov/sites/default/files/CDC's_Isolation_Guidance.pdf. https://www.osha.gov/sites/default/files/CDC's_Isolation_Guidance.pdf.
69 29 C.F.R. §§502(l)(4)(i) and (l)(6); CDC, 69 29 C.F.R. §§502(l)(4)(i) and (l)(6); CDC, COVID-19: Return to Work ~~Criteria~~ Criteria for Healthcare Personnel with SARS -
CoV-2 Infection (Interim Guidance), updated September 10, 2021, https://www.cdc.gov/coronavirus/2019-ncov/hcp/, updated September 10, 2021, https://www.cdc.gov/coronavirus/2019-ncov/hcp/
return-to-work.html. return-to-work.html.
70 29 C.F.R. §§502(l)(4)(ii) and (l)(6). 70 29 C.F.R. §§502(l)(4)(ii) and (l)(6).
71 29 C.F.R. §502(l)(4)(iii). 71 29 C.F.R. §502(l)(4)(iii).
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Covered employers may require employees subject to medical removal to work remotely or in Covered employers may require employees subject to medical removal to work remotely or in
isolation if suitable work is available.72 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 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 remotely or in isolation must continue to provide those employees with their regular pay and
benefits.73benefits.73
The medical removal protection provisions do not apply to covered employers with 10 or fewer The medical removal protection provisions do not apply to covered employers with 10 or fewer
employees on June 21, 2021.74 employees on June 21, 2021.74 Al All other covered employers must provide other covered employers must provide al all of the fringe benefits of the fringe benefits
~~normal y~~normally provided to the employee and the following pay to the removed employee: 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  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- 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 thirds of the employee’s normal pay, up to $200 per day, for al all remaining weeks; remaining weeks;
and and
 for covered employers with more than 500 employees, the employee’s full  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 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 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 or employer-provided payments (such as sick leave) received by the employee during the
employee’s removal.76 employee’s removal.76
Upon return to the workplace, a removed employee is entitled to Upon return to the workplace, a removed employee is entitled to al all employment rights and employment rights and
benefits, including the right to his or her previous job.77benefits, 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 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 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. 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 Covered employers must provide training on COVID-19 prevention, in appropriate languages and
at appropriate literacy levels, to at appropriate literacy levels, to al all employees.79 Training must be conducted by a person employees.79 Training must be conducted by a person
knowledgeable about the subject matter, and employees must have the opportunity to ask 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 questions during the training. Covered employers must ensure that trained employees understand
at least the following: at least the following:
 how COVID-19 is transmitted and how to reduce transmission through hand  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- hygiene and covering the nose and mouth, the signs and symptoms of COVID-

72 29 C.F.R. §502(l)(4)(iv). 72 29 C.F.R. §502(l)(4)(iv).
73 29 C.F.R. §502(l)(5)(ii). 73 29 C.F.R. §502(l)(5)(ii).
74 29 C.F.R. §502(l)(5)(i). 74 29 C.F.R. §502(l)(5)(i).
75 29 C.F.R. §502(l)(5)(iii). 75 29 C.F.R. §502(l)(5)(iii).
76 29 C.F.R. §502(l)(5)(iv). 76 29 C.F.R. §502(l)(5)(iv).
77 29 C.F.R. §502(l)(5)(v). 77 29 C.F.R. §502(l)(5)(v).
78 29 C.F.R. §502(m). 78 29 C.F.R. §502(m).
79 29 C.F.R. §502(n). 79 29 C.F.R. §502(n).
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19, the risk factors for severe 19, the risk factors for severe ~~il ness~~illness from COVID-19, and when to seek medical from COVID-19, and when to seek medical
attention; attention;
 patient screening and management policies and procedures;  patient screening and management policies and procedures;
 workplace tasks that could result in transmission of COVID-19;  workplace tasks that could result in transmission of COVID-19;
 policies and procedures to prevent COVID-19 transmission that are applicable to  policies and procedures to prevent COVID-19 transmission that are applicable to
an employee’s duties; an employee’s duties;
 agreements between multiple employers in a workplace related to shared spaces  agreements between multiple employers in a workplace related to shared spaces
and equipment; and equipment;
 policies and procedures for the use of PPE;  policies and procedures for the use of PPE;
 cleaning and disinfecting policies and procedures;  cleaning and disinfecting policies and procedures;
 paid leave available paid leave available from the employer or under federal, state, or local law for from the employer or under federal, state, or local law for
COVID-19 and available COVID-19 and available workplace flexibility policies; workplace flexibility policies;
 the names of the safety coordinators identified in the required COVID-19 plan;  the names of the safety coordinators identified in the required COVID-19 plan;
 the requirements of the COVID-19 ETS; and  the requirements of the COVID-19 ETS; and
 how employees can receive copies of the COVID-19 ETS, employer policies 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 procedures developed under the ETS, and the written COVID-19 plan, if
applicable. applicable.
Covered employers are required to provide retraining to an employee when that employee takes 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 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. has not retained the information from the previous training.
Anti-Retaliation80
Covered employers must notify Covered employers must notify al all employees of their rights to the protections offered by the employees of their rights to the protections offered by the
COVID-19 ETS and that employers are prohibited from discharging or discriminating against COVID-19 ETS and that employers are prohibited from discharging or discriminating against
employees for exercising these rights.81 employees for exercising these rights.81
Recordkeeping and Reporting82
The recordkeeping and reporting provisions of the COVID-19 ETS do not apply to covered 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 employers with 10 or fewer employees on June 21, 2021.83 Al All other covered employers must other covered employers must
retain retain al all versions of their COVID-19 plans and maintain logs of versions of their COVID-19 plans and maintain logs of al all COVID-19 cases among COVID-19 cases among
employees, regardless of whether the COVID-19 transmission occurred in the workplace.84 employees, regardless of whether the COVID-19 transmission occurred in the workplace.84 Al
All versions of the COVID-19 plan and the COVID-19 log (with identifying information redacted) 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 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 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 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 80 For additional information on OSHA’s enforcement of anti-retaliation and whistleblower ~~protect ion~~protection provisions, see provisions, see
the section “Whistleblower Protections” later in this report. the section “Whistleblower Protections” later in this report.
81 29 C.F.R. §502(o). 81 29 C.F.R. §502(o).
82 For additional information on OSHA’s COVID-19 recordkeeping and reporting requirements for employers not 82 For additional information on OSHA’s COVID-19 recordkeeping and reporting requirements for employers not
covered by the covered by the ~~ET S~~ETS, see the section “, see the section “ COVID-19 Recordkeeping” later in this report.COVID-19 Recordkeeping” later in this report.
83 29 C.F.R. §502(q)(1). 83 29 C.F.R. §502(q)(1).
84 29 C.F.R. §502(q). 84 29 C.F.R. §502(q).
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report to OSHA report to OSHA any employment-related COVID-19 fatalities or inpatient hospitalizations in the any employment-related COVID-19 fatalities or inpatient hospitalizations in the
same manner as any other employment-related fatalities or inpatient hospitalizations.85 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 The PPE provision of the COVID-19 ETS permits covered employers to provide their employees
with respirators when respirators are not with respirators when respirators are not ~~specifical y~~specifically required by the ETS. Under OSHA’s required by the ETS. Under OSHA’s
respiratory protection standard, employers must provide a medical evaluation to each employee 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 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 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).86tight seal around the face (referred to as fit testing).86
Under the mini-respiratory-protection provision of the COVID-19 ETS, employers who provide Under the mini-respiratory-protection provision of the COVID-19 ETS, employers who provide
respirators to their employees when respirators are not respirators to their employees when respirators are not ~~specifical y~~specifically required may forgo the required may forgo the
medical evaluation and fit-testing requirements of the respiratory protection standard.87 Such 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 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 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-storage, reuse, and discontinuation of respirators.88 When respirators are required by the COVID-
19 ETS, employers must comply with 19 ETS, employers must comply with al all elements of the OSHA respiratory protection standard, elements of the OSHA respiratory protection standard,
including medical evaluation and fit testing.including medical evaluation and fit testing.
OSHA ETS on COVID-19 Vaccination and Testing
On November 5, 2021, OSHA promulgated an ETS on COVID-19 vaccination and testing for On November 5, 2021, OSHA promulgated an ETS on COVID-19 vaccination and testing for al
all large employers.89 This ETS requires that large employers.89 This ETS requires that al all employers with 100 or more employees develop employers with 100 or more employees develop
written policies requiring that employees be fully vaccinated against COVID-19. As an written policies requiring that employees be fully vaccinated against COVID-19. As an
alternative, employers may develop written policies that alternative, employers may develop written policies that ~~al ow~~allow employees to choose to either be employees to choose to either be
fully vaccinated against COVID-19 or provide proof of weekly negative COVID-19 tests and fully vaccinated against COVID-19 or provide proof of weekly negative COVID-19 tests and
wear face coverings while in the workplace. Employers are not required to pay for COVID-19 wear face coverings while in the workplace. Employers are not required to pay for COVID-19
tests or pay for or provide face coverings. Employers must develop vaccination and testing plans tests or pay for or provide face coverings. Employers must develop vaccination and testing plans
within 30 days of the publication of the ETS (December 5, 2021) and must enforce the within 30 days of the publication of the ETS (December 5, 2021) and must enforce the
requirements for testing of unvaccinated employees within 60 days (January 4, 2022). requirements for testing of unvaccinated employees within 60 days (January 4, 2022).
While the While the Federal Register announcement does not specify a specific duration for the COVID-19 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 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 months. The publication of the COVID-19 ETS in the Federal Register also included a request also included a request
for comments on the ETS and on whether the ETS should become a permanent standard. In the for comments on the ETS and on whether the ETS should become a permanent standard. In the
preamble to the ETS, OSHA provides that preamble to the ETS, OSHA provides that al all state plans must adopt the ETS within 30 days of its state plans must adopt the ETS within 30 days of its

85 29 C.F.R. §502(q). OSHA85 29 C.F.R. §502(q). OSHA regulations at regulations at ~~T itle~~Title 29, Section 1904.39, of the 29, Section 1904.39, of the Code of Federal Regulations require require
employers to report to OSHA any employmentemployers to report to OSHA any employment -related fatalities within eight hours and any employment-related fatalities within eight hours and any employment -related -related
inpatient hospitalizations within 24 hours. inpatient hospitalizations within 24 hours.
86 For additional information on OSHA’s respiratory protection standard, see the section “OSHA Respiratory 86 For additional information on OSHA’s respiratory protection standard, see the section “OSHA Respiratory
Protection Standard” later in this report. Protection Standard” later in this report.
87 29 C.F.R. §504. 87 29 C.F.R. §504.
88 In a user-seal88 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 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 passesinhaling to determine if any air passes between the face and respirator. between the face and respirator.
89 OSHA, 89 OSHA, “COVID-19 Vaccination and “COVID-19 Vaccination and ~~T esting~~Testing; Emergency ; Emergency ~~T emporary~~Temporary Standard,” 86 Standard,” 86 Federal Register 61402, 61402,
November 5, 2021. November 5, 2021.
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publication and notify OSHA within 15 days of the actions they plan to take to adopt the ETS. publication and notify OSHA within 15 days of the actions they plan to take to adopt the ETS.
The ETS is not retroactive. The ETS is not retroactive.
Petitions for Judicial Review
Petitions for judicial review of the COVID-19 vaccination and testing ETS have been filed by 27 Petitions for judicial review of the COVID-19 vaccination and testing ETS have been filed by 27
states and numerous employers in the U.S. Courts of Appeals for the First, Fourth, Fifth, Sixth, states and numerous employers in the U.S. Courts of Appeals for the First, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth, Eleventh, and District of Columbia Circuits.90 In addition, labor unions Seventh, Eighth, Ninth, Eleventh, and District of Columbia Circuits.90 In addition, labor unions
and employee groups have filed petitions for judicial review in the Second, Third, Fourth, Ninth, and employee groups have filed petitions for judicial review in the Second, Third, Fourth, Ninth,
Tenth, and District of Columbia Circuits. Tenth, and District of Columbia Circuits.
On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit ordered that the COVID-19 On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit ordered that the COVID-19
vaccination and ETS be stayed pending judicial review. This stay was reaffirmed by the court on vaccination and ETS be stayed pending judicial review. This stay was reaffirmed by the court on
November 12, 2021, and applies November 12, 2021, and applies ~~national y~~nationally.91 .91
On November 16, 2021, the United State Judicial Panel on Multidistrict Litigation On November 16, 2021, the United State Judicial Panel on Multidistrict Litigation consolidated consolidated
the petitions for judicial review of the COVID-19 vaccination and testing ETS and randomly the petitions for judicial review of the COVID-19 vaccination and testing ETS and randomly
assigned these consolidated cases to the U.S. Court of Appeals for the Sixth Circuit.92assigned these consolidated cases to the U.S. Court of Appeals for the Sixth Circuit.92
~~Justification for the COVID-19 Vaccination and Testing ETS~~
~~In the preamble to the~~ Congressional Action On December 8, 2021, the Senate passed S.J.Res. 29, a joint resolution of disapproval of the COVID-19 vaccination and testing ETS, under the provisions of the Congressional Review Act.93 The House of Representatives has not yet acted on this joint resolution. If this joint resolution is enacted into law, which requires either the signature of the President or the overriding of a presidential veto, the ETS would immediately cease to have any effect, and OSHA would be prohibited from promulgating any rule that is “substantially the same” as the ETS unless specifically permitted by a law enacted after the date of the joint resolution.94 Justification for the COVID-19 Vaccination and Testing ETS In the preamble to the COVID-19 vaccination and testing published in the Federal Register, OSHA provides a justification for the ETS. Specifically, OSHA cites 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. 90 The states of Louisiana, Mississippi, South Carolina, Texas and Utah (Fifth Circuit); Idaho, Kansas, Kentucky, Ohio, Oklahoma, Tennessee, and West Virginia (Sixth Circuit); Indiana (Seventh Circuit); Alaska, Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming (Eighth Circuit); and Alabama, Florida, and Georgia (Eleventh Circuit) are plaintiffs in these cases. 91 For additional information on judicial review of the OSHA COVID-19 vaccination and testing ETS, see CRS Legal Sidebar LSB10658, Fifth Circuit ~~COVID-19 vaccination and testing published in the Federal Register,~~
~~OSHA provides a justification for the ETS. Specifical y, OSHA cites 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 the COVID-19 vaccination and testing ETS, OSHA states that it has found~~
~~that “employees can be exposed to the virus in almost any work setting; that exposure to SARS-~~
~~CoV-2 can lead to infection … and that infection in turn can cause death or serious impairment of~~
~~health, especial y in those who are unvaccinated.”93~~
~~OSHA’s determination that COVID-19 meets the grave danger standard required for an ETS rests~~
~~on evidence and research on the following factors:~~
~~ the grave danger that all unvaccinated workers, with some exceptions, face from~~
~~SARS-Cov-2, including death and severe health effects;~~
~~ the increase in infectiousness and transmission, and possible increase in severity~~
~~of health effects from the B.1.617.2 (Delta) variant, which now accounts for 99%~~
~~of the COVID-19 circulating in the United States; and~~

~~90 T he states of Louisiana, Mississippi, South Carolina, T exas and Utah (Fifth Circuit); Idaho, Kansas, Kentucky, Ohio,~~
~~Oklahoma, T ennessee, and West Virginia (Sixth Circuit); Indiana (Seventh Circuit); Alaska, Arizona, Arkansas, Iowa,~~
~~Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming (Eighth Circuit); and~~
~~Alabama, Florida, and Georgia (Eleventh Circuit) are plaintiffs in these cases.~~
~~91 For additional information on judicial review of the OSHA COVID-19 vaccination and testing ET S, see CRS Legal~~
~~Sidebar LSB10658,~~ ~~Fifth Circuit~~ Stays OSHA Vaccination and Testing Standard. .
92 92 In Re: Occupational Safety and Health Administration, Interim Final Rule: COVID-19 Vaccination and Testing;
~~Em ergency Tem porary~~Emergency Temporary Standard, 86 Fed. Reg. 61402, Issued on ~~Novem ber~~November 4, 2021 , MCP No. 165 (J.P.M.L. November , MCP No. 165 (J.P.M.L. November
16, 2021). 16, 2021).
93 93 ~~OSHA, “COVID-19 Vaccination and T esting; Emergency T emporary Standard,” p. 61411.~~
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~~ evidence of pre-symptomatic and asymptomatic transmission of COVID-19.94~~For additional information on the Congressional Review Act, see CRS In Focus IF10023, The Congressional Review Act (CRA). 94 5 U.S.C. §801(b). Congressional Research Service 18 OSHA: ETS and COVID-19 Grave Danger Determination In its justification for the COVID-19 vaccination and testing ETS, OSHA states that it has found that “employees can be exposed to the virus in almost any work setting; that exposure to SARS-CoV-2 can lead to infection … and that infection in turn can cause death or serious impairment of health, especially in those who are unvaccinated.”95 OSHA’s determination that COVID-19 meets the grave danger standard required for an ETS rests on evidence and research on the following factors:  the grave danger that all unvaccinated workers, with some exceptions, face from SARS-Cov-2, including death and severe health effects;  the increase in infectiousness and transmission, and possible increase in severity of health effects from the B.1.617.2 (Delta) variant, which now accounts for 99% of the COVID-19 circulating in the United States; and  evidence of pre-symptomatic and asymptomatic transmission of COVID-19.96
Necessity Determination
OSHA states that vaccination is the most effective strategy to control the spread of COVID-19 OSHA states that vaccination is the most effective strategy to control the spread of COVID-19
and that vaccination has advantages over non-pharmaceutical control strategies such as social and that vaccination has advantages over non-pharmaceutical control strategies such as social
distancing.distancing.9597 However, OSHA estimates that approximately 39% of workers who are covered by However, OSHA estimates that approximately 39% of workers who are covered by
the COVID-19 vaccination and testing ETS are not fully vaccinated against COVID-19.the COVID-19 vaccination and testing ETS are not fully vaccinated against COVID-19.9698 In In
some states, laws or executive orders prohibit employers from implementing vaccine mandates some states, laws or executive orders prohibit employers from implementing vaccine mandates
for their employees, necessitating a national standard to overcome these barriers to vaccination for their employees, necessitating a national standard to overcome these barriers to vaccination
and create a uniform national policy on vaccination. and create a uniform national policy on vaccination.
OSHA justifies OSHA justifies ~~al owing~~allowing employers to employers to ~~al ow~~allow employees to opt out of getting vaccinated against employees to opt out of getting vaccinated against
COVID-19 by submitting to weekly COVID-19 testing and wearing face coverings in the COVID-19 by submitting to weekly COVID-19 testing and wearing face coverings in the
workplace by stating that the “exigent circumstances” of the COVID-19 pandemic require OSHA workplace by stating that the “exigent circumstances” of the COVID-19 pandemic require OSHA
to promulgate an ETS without having the opportunity to fully study the “potential spectrum of to promulgate an ETS without having the opportunity to fully study the “potential spectrum of
impacts on employers and employees, including the economic and health impacts, that would impacts on employers and employees, including the economic and health impacts, that would
occur if OSHA imposed a strict vaccination mandate with no alternative compliance option.”occur if OSHA imposed a strict vaccination mandate with no alternative compliance option.”9799
OSHA notes that as part of the process of promulgating a permanent standard on vaccination OSHA notes that as part of the process of promulgating a permanent standard on vaccination
required by Section 6(c) of the OSH Act, the agency is soliciting public comments on whether a required by Section 6(c) of the OSH Act, the agency is soliciting public comments on whether a
vaccine mandate without any options of alternative means of compliance is warranted.vaccine mandate without any options of alternative means of compliance is warranted.98100
Employers Covered by the COVID-19 Vaccination and Testing ETS
The COVID-19 vaccination and testing ETS covers The COVID-19 vaccination and testing ETS covers al all employers with 100 or more employees at employers with 100 or more employees at
any time the ETS is in effect, with the following exceptions:any time the ETS is in effect, with the following exceptions:99
~~ workplaces covered by the vaccination rules provided in the “Guidance for~~
~~Federal Contractors and Subcontractors” issued by the Safer Federal Workforce~~
~~Task Force, including executive branch agencies with the exception of the U.S.~~
~~Postal Service;100 and~~
~~ work settings covered by the COVID-19 ETS for health care employers.~~
~~When determining the number of employees for an employer, al employees are counted,~~
~~including those at multiple worksites owned by the employer; part-time and seasonal employees;~~
~~and persons working remotely, from home, or otherwise not working in a physical office.101~~

94101 95 OSHA, “COVID-19 Vaccination and Testing; Emergency Temporary Standard,” p. 61411. 96 Ibid., at pp. 61408-61424. Ibid., at pp. 61408-61424.
9597 Ibid., at p. 61434. Ibid., at p. 61434.
9698 Ibid., at p. 61431. Ibid., at p. 61431.
9799 Ibid., at p. 61436. Ibid., at p. 61436.
~~98 T he~~100 The request for comments is included request for comments is included in the preamble to the in the preamble to the ~~ET S~~ETS at pp. 61403-61404. at pp. 61403-61404.
99101 29 C.F.R. §§1910.501(b)(1) and (2). 29 C.F.R. §§1910.501(b)(1) and (2). ~~T he ET S~~The ETS is part of the OSHA is part of the OSHA standards for general industry. standards for general industry. ~~T he~~The OSHA OSHA
standards for employers in marine terminals, longshoring, construction, and agriculture incorporate the provisions of standards for employers in marine terminals, longshoring, construction, and agriculture incorporate the provisions of
~~the ET S by reference.~~
~~100 Safer Federal Workforce T ask Force,~~ ~~COVID-19 Workplace Safety:~~ Congressional Research Service 19 OSHA: ETS and COVID-19  workplaces covered by the vaccination rules provided in the “Guidance for ~~Guidance for Federal Contractors and~~
~~Subcontractors, September 24, 2021, https://www.saferfederalworkforce.gov/downloads/~~
~~Draft%20contractor%20guidance%20doc_20210922.pdf .~~
~~101 OSHA, “COVID-19 Vaccination and T esting, Emergency T emporary Standard,” pp. 61513-61514.~~
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Federal Contractors and Subcontractors” issued by the Safer Federal Workforce Task Force, including executive branch agencies with the exception of the U.S. Postal Service;102 and  work settings covered by the COVID-19 ETS for health care employers. When determining the number of employees for an employer, all employees are counted, including those at multiple worksites owned by the employer; part-time and seasonal employees; and persons working remotely, from home, or otherwise not working in a physical office.103
In the preamble to the COVID-19 vaccination and testing ETS, OSHA provides the following In the preamble to the COVID-19 vaccination and testing ETS, OSHA provides the following
reasons why the ETS does not apply to employers with fewer than 100 employees: reasons why the ETS does not apply to employers with fewer than 100 employees:
 the agency lacks confidence in the feasibility of  the agency lacks confidence in the feasibility of ~~smal~~ small employers to comply with employers to comply with
the ETS; the ETS;
 the 100-employee threshold  the 100-employee threshold ~~al ows~~allows the ETS to cover two-thirds of private sector the ETS to cover two-thirds of private sector
workers in the United States; workers in the United States;
 the 100-employee threshold  the 100-employee threshold ~~wil al ow~~will allow the ETS to cover the largest workplace the ETS to cover the largest workplace
facilities, where the deadliest COVID-19 outbreaks can occur; and facilities, where the deadliest COVID-19 outbreaks can occur; and
 an employee threshold for compliance has been used by federal agencies, such as  an employee threshold for compliance has been used by federal agencies, such as
the Equal Employment Opportunity Commission, and by Congress in enacting the Equal Employment Opportunity Commission, and by Congress in enacting
legislationlegislation such as the Family First Coronavirus Response Act (P.L. 116-127), such as the Family First Coronavirus Response Act (P.L. 116-127),
Affordable Care Act (P.L. 111-148), and Family and Medical Leave Act (P.L. Affordable Care Act (P.L. 111-148), and Family and Medical Leave Act (P.L.
103-3).103-3).~~102~~104
The COVID-19 vaccination and testing ETS does not apply to workers who: The COVID-19 vaccination and testing ETS does not apply to workers who:
 do not work in settings where other people, such as coworkers or customers, are  do not work in settings where other people, such as coworkers or customers, are
present; present;
 work from home; or  work from home; or
 work exclusively outdoors. work exclusively outdoors.~~103~~105
However, these workers are counted when determining if an employee meets the 100-employee However, these workers are counted when determining if an employee meets the 100-employee
~~threshold.~~threshold. the ETS by reference. 102 Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, September 24, 2021, https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf. 103 OSHA, “COVID-19 Vaccination and Testing, Emergency Temporary Standard,” pp. 61513-61514. 104 Ibid., at pp. 61512-61513. 105 29 C.F.R. §1910.501(b)(3). Congressional Research Service 20 OSHA: ETS and COVID-19
Key Elements of the COVID-19 Vaccination and Testing ETS
Mandatory Vaccination Policy
A covered employer is required to establish, implement, and enforce a written mandatory A covered employer is required to establish, implement, and enforce a written mandatory
vaccination policy. This policy must require the vaccination of vaccination policy. This policy must require the vaccination of al all covered employees, as soon as covered employees, as soon as
practicable, with the following exceptions: practicable, with the following exceptions:
 employees for whom a vaccine is  employees for whom a vaccine is ~~medical y~~medically contraindicated, contraindicated,
 employees for whom a delay in vaccination is  employees for whom a delay in vaccination is ~~medical y~~medically necessary, and necessary, and
 employees who are  employees who are ~~legal y~~legally entitled to reasonable accommodations under federal entitled to reasonable accommodations under federal
law because they have disabilities law because they have disabilities or religious beliefs that conflict with the or religious beliefs that conflict with the
vaccine requirement.vaccine requirement.~~104~~106
An employee is considered to be fully vaccinated when two weeks has elapsed from the final An employee is considered to be fully vaccinated when two weeks has elapsed from the final
dose of a COVID-19 vaccine that is approved or authorized for emergency use by the FDA, listed dose of a COVID-19 vaccine that is approved or authorized for emergency use by the FDA, listed
for emergency use by the World Health Organization, or administered in the United States as part for emergency use by the World Health Organization, or administered in the United States as part
~~of a clinical trial.105~~

~~102 Ibid., at pp. 61512-61513.~~
~~103 29 C.F.R. §1910.501(b)(3).~~
~~104 29 C.F.R. §§1910.501(c) and (d)(1).~~
~~105 29 C.F.R. §1910.501(c).~~
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of a clinical trial.107
A covered employer may, but is not required to, establish, implement, and enforce a written A covered employer may, but is not required to, establish, implement, and enforce a written
policy that permits any employee to choose between being fully vaccinated or providing proof of policy that permits any employee to choose between being fully vaccinated or providing proof of
a negative COVID-19 test at least once every seven days and wearing a face covering in the a negative COVID-19 test at least once every seven days and wearing a face covering in the
workplace.workplace.~~106~~108 The employer is not required to provide or pay for the COVID-19 testing or face The employer is not required to provide or pay for the COVID-19 testing or face
covering.covering.~~107~~
109 A COVID-19 test used to permit an employee to work without being fully vaccinated must be A COVID-19 test used to permit an employee to work without being fully vaccinated must be
cleared, approved, or authorized by the FDA, including in an EUA, to detect current SARS-CoV-cleared, approved, or authorized by the FDA, including in an EUA, to detect current SARS-CoV-
2 infection. The test must be administered in accordance with its instructions. The test cannot be 2 infection. The test must be administered in accordance with its instructions. The test cannot be
self-administered and self-read unless observed by the employer or a telehealth provider.self-administered and self-read unless observed by the employer or a telehealth provider.~~108~~110
Determination of Vaccination Status
Covered employers must require their employees to provide proof of vaccination status. Any Covered employers must require their employees to provide proof of vaccination status. Any
employee who does not submit acceptable proof of full vaccination is considered to be employee who does not submit acceptable proof of full vaccination is considered to be
unvaccinated.unvaccinated.~~109~~111 The following are acceptable forms of proof of vaccination status: The following are acceptable forms of proof of vaccination status:
 record of immunization from a health care provider or pharmacy;  record of immunization from a health care provider or pharmacy;
 copy of the COVID-19 Vaccine Record Card;  copy of the COVID-19 Vaccine Record Card;
 medical records documenting the vaccination;  medical records documenting the vaccination;
 copy of immunization records from a public health, state, or tribal immunization  copy of immunization records from a public health, state, or tribal immunization
information service; information service; 106 29 C.F.R. §§1910.501(c) and (d)(1). 107 29 C.F.R. §1910.501(c). 108 29 C.F.R. §1910.501(d)(2). 109 29 C.F.R. §§1910.501(g)(1) Note 1 and (i) Note 2. 110 29 C.F.R. §1910.501(c). 111 29 C.F.R. §1910.501(e)(3). Congressional Research Service 21 OSHA: ETS and COVID-19
 any other official documentation that contains the type of vaccine administered,  any other official documentation that contains the type of vaccine administered,
the dates of administration, and the name of the person or site that administered the dates of administration, and the name of the person or site that administered
the vaccine.the vaccine.~~110~~
112 An employee who is unable to provide acceptable proof of vaccination may provide a signed An employee who is unable to provide acceptable proof of vaccination may provide a signed
statement attesting to his or her vaccination status and that he or she has lost or is otherwise statement attesting to his or her vaccination status and that he or she has lost or is otherwise
unable to provide acceptable proof of vaccination. The attestation statement of the employee must unable to provide acceptable proof of vaccination. The attestation statement of the employee must
include the following language: include the following language:
I declare (or certify, verify, or state) that this statement about my vaccination status is true I declare (or certify, verify, or state) that this statement about my vaccination status is true
andand accurate.accurate. ~~I understand that knowingly providing false information regarding~~ I understand that knowingly providing false information regarding my my
vaccination status on this form may subject me to criminal penalties.vaccination status on this form may subject me to criminal penalties.~~111~~113
Employers are required to maintain records of employee vaccination and rosters of vaccinated Employers are required to maintain records of employee vaccination and rosters of vaccinated
employees for the duration of the time the ETS is in effect.employees for the duration of the time the ETS is in effect.~~112~~114 An employer who has determined An employer who has determined
the vaccination status of an employee before the effective date of the ETS is not required to the vaccination status of an employee before the effective date of the ETS is not required to
receive additionalreceive additional documentation from the employee.115 ~~documentation from the employee.113~~

~~106 29 C.F.R. §1910.501(d)(2).~~
~~107 29 C.F.R. §§1910.501(g)(1) Note 1 and (i) Note 2.~~
~~108 29 C.F.R. §1910.501(c).~~
~~109 29 C.F.R. §1910.501(e)(3).~~
~~110 29 C.F.R. §1910.501(e)(2).~~
~~111 29 C.F.R. §1910.501(e)(2)(vi).~~
~~112 29 C.F.R. §1910.501(e)(4).~~
~~113 29 C.F.R. §1910.501(e)(5).~~
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Employer Support and Paid Leave for Vaccination
Covered employers must provide employees paid leave of up to four hours for the employee to Covered employers must provide employees paid leave of up to four hours for the employee to
travel to and from a vaccination site and receive each vaccination dose, for a total of eight hours travel to and from a vaccination site and receive each vaccination dose, for a total of eight hours
of leave. The employee is not required to pay for travel expenses.of leave. The employee is not required to pay for travel expenses.~~114~~
116 Covered employers must provide paid sick leave, which can include the use of an employee’s Covered employers must provide paid sick leave, which can include the use of an employee’s
accrued sick leave, to accrued sick leave, to ~~al ow~~allow employees reasonable time off of work to recover from the side employees reasonable time off of work to recover from the side
effects of each vaccine dose.effects of each vaccine dose.~~115~~
117 COVID-19 Testing for Employees Not Fully Vaccinated
Covered employers must ensure that Covered employers must ensure that al all employees who are not fully vaccinated, either because employees who are not fully vaccinated, either because
of a medical or religious exemption from the vaccine requirements or as part of an employer’s of a medical or religious exemption from the vaccine requirements or as part of an employer’s
policy that policy that ~~al ows~~allows testing in lieu of vaccination, are tested for COVID-19 as follows: testing in lieu of vaccination, are tested for COVID-19 as follows:
 an employee who reports, at least once every seven days, to a workplace where  an employee who reports, at least once every seven days, to a workplace where
other people are present must be tested at least once every seven days and present other people are present must be tested at least once every seven days and present
the result of the test to the employer within seven days of providing the last test the result of the test to the employer within seven days of providing the last test
result to the employer; and result to the employer; and
 an employee who reports, less than once every seven days, to a workplace where  an employee who reports, less than once every seven days, to a workplace where
other people are present must be tested within seven days of returning to such a other people are present must be tested within seven days of returning to such a
workplace and must present the test result to the employer before returning to workplace and must present the test result to the employer before returning to
such a workplace.such a workplace.~~116~~118 112 29 C.F.R. §1910.501(e)(2). 113 29 C.F.R. §1910.501(e)(2)(vi). 114 29 C.F.R. §1910.501(e)(4). 115 29 C.F.R. §1910.501(e)(5). 116 29 C.F.R. §1910.501(f)(1). 117 29 C.F.R. §1910.501(f)(2). 118 29 C.F.R. §1910.501(g)(1). Congressional Research Service 22 OSHA: ETS and COVID-19
An employer may not require any employee to be tested for COVID-19 within 90 days following An employer may not require any employee to be tested for COVID-19 within 90 days following
a positive COVID-19 test or diagnosis.a positive COVID-19 test or diagnosis.~~117~~119 Employers must keep records of employee COVID-19 Employers must keep records of employee COVID-19
tests for the duration of time the ETS is in effect.tests for the duration of time the ETS is in effect.~~118~~
120 An employer is not required to provide or pay for COVID-19 tests for employees or provide any An employer is not required to provide or pay for COVID-19 tests for employees or provide any
paid time off for testing.paid time off for testing.~~119~~121 A COVID-19 test used to permit an employee to work without being A COVID-19 test used to permit an employee to work without being
fully vaccinated must be cleared, approved, or authorized by the FDA, including in an EUA, to fully vaccinated must be cleared, approved, or authorized by the FDA, including in an EUA, to
detect current SARS-CoV-2 infection. The test must be administered in accordance with its detect current SARS-CoV-2 infection. The test must be administered in accordance with its
instructions. The test cannot be self-administered and self-read unless observed by the employer instructions. The test cannot be self-administered and self-read unless observed by the employer
or a telehealth provider.or a telehealth provider.~~120~~122
Employee Notification of Positive COVID-19 Test and Removal
Covered employers must require that Covered employers must require that al all employees notify them of any positive COVID-19 test or employees notify them of any positive COVID-19 test or
diagnosis. Employers must remove any employees with positive COVID-19 tests or diagnoses diagnosis. Employers must remove any employees with positive COVID-19 tests or diagnoses
from the workplace until one of the following takes place: from the workplace until one of the following takes place:

~~114 29 C.F.R. §1910.501(f)(1).~~
~~115 29 C.F.R. §1910.501(f)(2).~~
~~116 29 C.F.R. §1910.501(g)(1).~~
~~117 29 C.F.R. §501(g)(3).~~
~~118 29 C.F.R. §501(g)(4).~~
~~119 29 C.F.R. §1910.501(g)(1) Note 1.~~
~~120 29 C.F.R. §1910.501(c).~~
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 the employee receives a negative result on a COVID-19 nucleic acid  the employee receives a negative result on a COVID-19 nucleic acid
amplification test (NAAT), such as a reverse-transcription polymerase chain amplification test (NAAT), such as a reverse-transcription polymerase chain
reaction (RT-PCR) test, following an antigen test; reaction (RT-PCR) test, following an antigen test;
 the employee meets the criteria to return to work provided in the CDC document  the employee meets the criteria to return to work provided in the CDC document
COVID-19: Isolation If You Are Sick; Separate Yourself from Others If You Have
COVID-19, updated February 18, 2021;;~~121 or~~
123 or  the employee receives a recommendation to return to work from a licensed health  the employee receives a recommendation to return to work from a licensed health
care provider. care provider.~~122~~124
The employer is not required to provide any paid leave to employees who are removed from work The employer is not required to provide any paid leave to employees who are removed from work
due to a positive COVID-19 test or diagnosis and covered by this ETS.due to a positive COVID-19 test or diagnosis and covered by this ETS.~~123~~125 This differs from the This differs from the
medical removal provisions of the COVID-19 ETS for health care employers, which includes medical removal provisions of the COVID-19 ETS for health care employers, which includes
paid medical removal.paid medical removal.~~124~~126
Face Coverings
Covered employers must require that Covered employers must require that al all employees who are not fully vaccinated wear face employees who are not fully vaccinated wear face
coverings when indoors in the workplace or when in a work vehicle with another person, except coverings when indoors in the workplace or when in a work vehicle with another person, except
when wearing a face covering is not feasible or creates a hazard.when wearing a face covering is not feasible or creates a hazard.~~125~~127 A face covering must A face covering must
 completely cover the nose and mouth;  completely cover the nose and mouth;
119 29 C.F.R. §501(g)(3). 120 29 C.F.R. §501(g)(4). 121 29 C.F.R. §1910.501(g)(1) Note 1. 122 29 C.F.R. §1910.501(c). 123 CDC, Isolation If You Are Sick; Separate Yourself from Others If You Have COVID-19, updated February 18, 2021, https://www.osha.gov/sites/default/files/CDC's_Isolation_Guidance.pdf. 124 29 C.F.R. §1910.501(h)(2). 125 29 C.F.R. §1910.501(h)(2) Note 1. 126 29 C.F.R. §1910.502(l)(5)(iii). 127 29 C.F.R. §1910.501(i)(1). Congressional Research Service 23 OSHA: ETS and COVID-19  be made of two or more layers of breathable fabric that is tightly woven such that  be made of two or more layers of breathable fabric that is tightly woven such that
light does not pass through when held up to a light source; light does not pass through when held up to a light source;
 be secured with ties, ear loops, or elastic bands that go behind the head or is a  be secured with ties, ear loops, or elastic bands that go behind the head or is a
gaiter with either two layers of fabric or folded into two layers; gaiter with either two layers of fabric or folded into two layers;
 fit snugly over the nose, mouth, and chin with no large gaps on the outside of the  fit snugly over the nose, mouth, and chin with no large gaps on the outside of the
face; face;
 have no slits, holes, exhalation valves, or other openings; and  have no slits, holes, exhalation valves, or other openings; and
 be replaced when wet, soiled, or damaged. be replaced when wet, soiled, or damaged.~~126~~
128 An employer may not prevent any employee from wearing a face covering unless the employer An employer may not prevent any employee from wearing a face covering unless the employer
can demonstrate that wearing a face covering would create a hazard of injury or death, such as can demonstrate that wearing a face covering would create a hazard of injury or death, such as
interfering with the safe operation of equipment.interfering with the safe operation of equipment.~~127~~129 An employer may not prohibit customers from An employer may not prohibit customers from
~~wearing face coverings.128~~

~~121 CDC, Isolation If You Are Sick; Separate Yourself from Others If You Have COVID-19, updated February 18, 2021,~~
~~https://www.osha.gov/sites/default/files/CDC's_Isolat ion_Guidance.pdf.~~
~~122 29 C.F.R. §1910.501(h)(2).~~
~~123 29 C.F.R. §1910.501(h)(2) Note 1.~~
~~124 29 C.F.R. §1910.502(l)(5)(iii).~~
~~125 29 C.F.R. §1910.501(i)(1).~~
~~126 29 C.F.R. §§1910.501(c), (i)(1), and (2).~~
~~127 29 C.F.R. §1910.501(i)(3).~~
~~128 29 C.F.R. §1910.501(i)(5).~~
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wearing face coverings.130 An employer must permit employees to wear respirators and may provide respirators to An employer must permit employees to wear respirators and may provide respirators to
employees. If respirators are worn, the employer must comply with the mini-respiratory employees. If respirators are worn, the employer must comply with the mini-respiratory
protection provision of the COVID-19 ETS for health care employment.protection provision of the COVID-19 ETS for health care employment.~~129~~
131 Information Provided to Employees
Covered employers must provide Covered employers must provide al all employees with the following information, in appropriate employees with the following information, in appropriate
language and literacy levels: language and literacy levels:
 the requirements of the COVID-19 vaccination and testing ETS and employer  the requirements of the COVID-19 vaccination and testing ETS and employer
policies to comply with the ETS; policies to comply with the ETS;
 the CDC document “Key Things to Know about COVID-19 Vaccines;”  the CDC document “Key Things to Know about COVID-19 Vaccines;”~~130~~132
 the anti-retaliation the anti-retaliation and whistleblower protection provisions of the OSH Act and and whistleblower protection provisions of the OSH Act and
OSHA standards; and OSHA standards; and
 the prohibitions of Title 18, Section 1001, of the  the prohibitions of Title 18, Section 1001, of the U.S. Code and Section 17(g) of and Section 17(g) of
the OSH the OSH ~~Act131~~Act133 which provide criminal penalties for knowingly supplying false which provide criminal penalties for knowingly supplying false
statements or documents.statements or documents.~~132~~
134 Reporting COVID-19 Fatalities and Hospitalizations to OSHA
Covered employers must report each work-related COVID-19 fatality to OSHA within eight Covered employers must report each work-related COVID-19 fatality to OSHA within eight
hours of the employer learning about the fatality and each work-related COVID-19 inpatient hours of the employer learning about the fatality and each work-related COVID-19 inpatient
hospitalization within 24 hours.hospitalization within 24 hours.~~133~~135 A work-related COVID-19 fatality or hospitalization is one that A work-related COVID-19 fatality or hospitalization is one that
results from a COVID-19 exposure in the workplace.results from a COVID-19 exposure in the workplace.~~134~~136 128 29 C.F.R. §§1910.501(c), (i)(1), and (2). 129 29 C.F.R. §1910.501(i)(3). 130 29 C.F.R. §1910.501(i)(5). 131 29 C.F.R. §1910.501(i)(4), incorporating 29 C.F.R. §1910.504 by reference. 132 CDC, Key Things to Know about COVID-19 Vaccines, October 7, 2021, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html. 133 29 U.S.C. §666(f). 134 29 C.F.R. §501(j). 135 29 C.F.R. §501(k). 136 OSHA, “COVID-19 Vaccination and Testing, Emergency Temporary Standard,” pp. xxx (p. 454) Congressional Research Service 24 OSHA: ETS and COVID-19
Availability of Records
Covered employers must make the following records available to specified individuals Covered employers must make the following records available to specified individuals or or
organizations in the following manner: organizations in the following manner:
 an employee’s vaccine documentation and COVID-19 test results, by the end of  an employee’s vaccine documentation and COVID-19 test results, by the end of
the following business day, to the employee or a person with the written consent the following business day, to the employee or a person with the written consent
of the employee; of the employee;
 the aggregate number of fully vaccinated employees and total number of  the aggregate number of fully vaccinated employees and total number of
employees at a workplace, by the end of the next business day, to an employee or employees at a workplace, by the end of the next business day, to an employee or
employee representative; employee representative;
 the employer’s written vaccine policy and aggregate number of fully vaccinated  the employer’s written vaccine policy and aggregate number of fully vaccinated
employees and total number of employees, within four hours, to OSHA; and employees and total number of employees, within four hours, to OSHA; and

~~129 29 C.F.R. §1910.501(i)(4), incorporating 29 C.F.R. §1910.504 by reference.~~
~~130 CDC, Key Things to Know about COVID-19 Vaccines, October 7, 2021, https://www.cdc.gov/coronavirus/2019-~~
~~ncov/vaccines/keythingstoknow.html.~~
~~131 29 U.S.C. §666(f).~~
~~132 29 C.F.R. §501(j).~~
~~133 29 C.F.R. §501(k).~~
~~134 OSHA, “COVID-19 Vaccination and T esting, Emergency T emporary Standard,” pp. xxx (p. 454)~~
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~~ al~~  all documents and records required by the COVID-19 vaccination and testing documents and records required by the COVID-19 vaccination and testing
ETS, by the end of the next business day, to OSHA. ETS, by the end of the next business day, to OSHA.~~135~~137
Other OSHA Standards Related to COVID-19
While the COVID-19 ETS applies only to health care employers, While the COVID-19 ETS applies only to health care employers, al all employers are required to employers are required to
comply with other OSHA standards that, while not specific to COVID-19, may cover situations 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 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 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 failed to provide a worksite free of “recognized hazards” that are “causing or are likely to cause
death or serious physical harm” to workers.death or serious physical harm” to workers.~~136~~138 In addition, OSHA’s standards for the use of PPE 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 may apply in cases in which workers require eye, face, hand, or respiratory protection against
COVID-19 exposure.COVID-19 exposure.~~137~~
139 OSHA Respiratory Protection Standard
National Institute for Occupational Safety and Health Certification
The OSHA respiratory protection standard requires the use of respirators certified by NIOSH in The OSHA respiratory protection standard requires the use of respirators certified by NIOSH in
cases in which engineering controls, such as ventilation or enclosure of hazards, are insufficient cases in which engineering controls, such as ventilation or enclosure of hazards, are insufficient
to protect workers from breathing contaminated air.to protect workers from breathing contaminated air.~~138~~140 Surgical masks, procedure masks, and dust Surgical masks, procedure masks, and dust
masks are not considered respirators. NIOSH certifies respirators pursuant to federal masks are not considered respirators. NIOSH certifies respirators pursuant to federal
regulations.regulations.~~139~~141 For nonpowered respirators, such as filtering face piece respirators commonly used 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 in health care and construction, NIOSH classifies respirators based on their efficiency at filtering
airborne particles and their abilityairborne particles and their ability to protect against oil particles. Under the NIOSH classification to protect against oil particles. Under the NIOSH classification
system, the letter (N, R, or P) indicates the level of oil protection as follows: N—no oil system, the letter (N, R, or P) indicates the level of oil protection as follows: N—no oil
protection; R—oil resistant; and P—oil proof. The number following the letter indicates the protection; R—oil resistant; and P—oil proof. The number following the letter indicates the
efficiency rating of the respirator as follows: 95—filters 95% of airborne particles; 97—filters efficiency rating of the respirator as follows: 95—filters 95% of airborne particles; 97—filters
97% of airborne particles; and 100—filters 99.7% of airborne particles. Thus an N95 respirator, 97% of airborne particles; and 100—filters 99.7% of airborne particles. Thus an N95 respirator,
137 29 C.F.R. §501(l). 138 29 U.S.C. §654(a)(1). 139 29 C.F.R. §§1910.133, 1910.134, and 1910.138. 140 29 C.F.R. §1910.134. 141 42 C.F.R. Part 84. Congressional Research Service 25 OSHA: ETS and COVID-19 the most common type, is one that does not protect against oil particles and filters out 95% of the most common type, is one that does not protect against oil particles and filters out 95% of
airborne particles. An R or P respirator can be used in place of an N respirator. airborne particles. An R or P respirator can be used in place of an N respirator.
A respirator that is past its manufacturer-designated shelf life is no longer considered to be A respirator that is past its manufacturer-designated shelf life is no longer considered to be
certified by NIOSH. However, in response to potential shortages in respirators, NIOSH has tested certified by NIOSH. However, in response to potential shortages in respirators, NIOSH has tested
and approved certain models of respirators for certified use beyond their and approved certain models of respirators for certified use beyond their ~~manufac turer~~manufacturer-designated -designated
shelf lives.shelf lives.~~140~~142
Respirators designed for certain medical and surgical uses are subject to both certification by Respirators designed for certain medical and surgical uses are subject to both certification by
NIOSH (for oil protection and efficiency) and regulation by the FDA as medical devices. In 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 general, respirators with exhalation valves cannot be used in surgical and certain medical settings

~~135 29 C.F.R. §501(l).~~
~~136 29 U.S.C. §654(a)(1).~~
~~137 29 C.F.R. §§1910.133, 1910.134, and 1910.138.~~
~~138 29 C.F.R. §1910.134.~~
~~139 42 C.F.R. Part 84.~~
~~140 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.~~
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because, although the presence of an exhalation valve does not affect the respirator’s protection because, although the presence of an exhalation valve does not affect the respirator’s protection
afforded the user, it may afforded the user, it may ~~al ow~~allow unfiltered air from the user into a sterile field. On March 2, 2020, unfiltered air from the user into a sterile field. On March 2, 2020,
FDA issued an EUAFDA issued an EUA to approve for use in medical settings certain NIOSH-certified respirators to approve for use in medical settings certain NIOSH-certified respirators
not previously regulated by FDA.not previously regulated by FDA.~~141~~143
Medical Evaluation and Fit Testing
The OSHA respiratory protection standard requires that the employer provide a medical The OSHA respiratory protection standard requires that the employer provide a medical
evaluation to the employee to determine if the employee is evaluation to the employee to determine if the employee is ~~physiological y~~physiologically able to use a able to use a
respirator. This medical evaluation must be completed before any fit testing. For respirators respirator. This medical evaluation must be completed before any fit testing. For respirators
designed to fit tightly against the face, the specific type and model of respirator that an employee designed to fit tightly against the face, the specific type and model of respirator that an employee
is to use must be fit tested in accordance with the procedures provided in Appendix A of the is to use must be fit tested in accordance with the procedures provided in Appendix A of the
OSHA respiratory protection standard to ensure there is a complete seal around the respirator OSHA respiratory protection standard to ensure there is a complete seal around the respirator
when worn.when worn.~~142~~144 Once an employee has been fit tested for a respirator, he or she is required to be fit Once an employee has been fit tested for a respirator, he or she is required to be fit
tested tested ~~annual y~~annually or whenever the model of respirator, but not the actual respirator itself, is or whenever the model of respirator, but not the actual respirator itself, is
changed. Each time an individualchanged. Each time an individual uses a respirator, he or she is required to perform a check of the uses a respirator, he or she is required to perform a check of the
seal of the respirator to his or her face in accordance with the procedures provided in Appendix B seal of the respirator to his or her face in accordance with the procedures provided in Appendix B
of the standard.of the standard.~~143~~145 On March 14, 2020, OSHA issued guidance permitting employers to suspend On March 14, 2020, OSHA issued guidance permitting employers to suspend
annual fit testing of respirators for employees that have already been fit tested on the same model annual fit testing of respirators for employees that have already been fit tested on the same model
respirator. respirator.
Temporary OSHA Enforcement Guidance on the Respiratory Protection
Standard
In response to shortages of respirators and other PPE during the national response to the COVID- In response to shortages of respirators and other PPE during the national response to the COVID-
19 pandemic, OSHA has issued five sets of temporary enforcement guidance to permit the 19 pandemic, OSHA has issued five sets of temporary enforcement guidance to permit the
following exceptions to the respiratory protection standard: following exceptions to the respiratory protection standard:
1. employers may suspend annual fit testing of respirators for employees that have 1. employers may suspend annual fit testing of respirators for employees that have
already been fit tested on the same model respirator; already been fit tested on the same model respirator;~~144~~
~~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);145~~
~~3. employers may permit the use of respirators not certified by NIOSH, but~~
~~approved under standards used by the following countries or jurisdictions, in~~

~~141~~146 142 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. 143 Letter from RADM Denise M. Hinton, chief scientist, FDA, to Robert R. Redfield, Letter from RADM Denise M. Hinton, chief scientist, FDA, to Robert R. Redfield, Director, CDC,Director, CDC, March 2, 2020, March 2, 2020,
at https://www.fda.gov/media/135763/download. at https://www.fda.gov/media/135763/download.
~~142~~144 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. 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.
~~143~~145 29 C.F.R. §1910.134 Appendix B. 29 C.F.R. §1910.134 Appendix B.
~~144~~146 OSHA, 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/, 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.~~
~~145 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.~~
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Congressional Research Service 26 OSHA: ETS and COVID-19 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);147 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 accordance with the protection equivalency tables provided in Appendices A and
B of the enforcement guidance document: B of the enforcement guidance document:
 Australia,  Australia,
 Brazil,  Brazil,
 European Union,  European Union,
 Japan,  Japan,
 Mexico,  Mexico,
 People’s Republic of China, and  People’s Republic of China, and
 Republic of Korea. Republic of Korea.~~146~~148
4. employers may permit the re-use of respirators decontaminated in accordance 4. employers may permit the re-use of respirators decontaminated in accordance
with CDC decontamination guidance; with CDC decontamination guidance;~~147~~149 and and
5. employers may permit the use of NIOSH-approved tight-fitting PAPRs in place 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. of respirators when respirator fit testing is not feasible due to supply issues.~~148~~150
COVID-19 Recordkeeping
Sections 8(c) and 24(a) of the OSH Act require employers to maintain records of occupational Sections 8(c) and 24(a) of the OSH Act require employers to maintain records of occupational
injuries and injuries and ~~il nesses~~illnesses in accordance with OSHA regulations. in accordance with OSHA regulations.~~149~~151 OSHA’s reporting and OSHA’s reporting and
recordkeeping regulations require that employers with 10 or more employees must keep records recordkeeping regulations require that employers with 10 or more employees must keep records
of work-related injuries and of work-related injuries and ~~il nesses~~illnesses that result in lost work time for employees or that require temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit; and OSHA Expanded Temporary Enforcement Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the Coronavirus Disease 2019 (COVID-19) Pandemic, April 8, 2020, at https://www.osha.gov/memos/2020-04-08/expanded-temporary-enforcement-guidance-respiratory-protection-fit-testing-n95. 147 OSHA, Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic, April 3, 2020, at https://www.osha.gov/memos/2020-04-03/enforcement-guidance-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. 148 OSHA, ~~that result in lost work time for employees or that require~~
~~medical care beyond first aid.150 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.151 Offices of physicians, dentists, other health practitioners and~~
~~outpatient medical clinics are included in the industries that are exempt from the recordkeeping~~
~~requirements.~~

~~146 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~~Pandemic, April 3, 2020, at , April 3, 2020, at
https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under. https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under.
~~147~~ 149 OSHA, OSHA, Enforcement Guidance on Decontamination of Filtering Facepiece Respirators in Healthcare During the
Coronavirus Disease 2019 (COVID-19) ~~Pandem ic~~Pandemic, April 24, 2021, at https://www.osha.gov/memos/2020-04-24/, April 24, 2021, at https://www.osha.gov/memos/2020-04-24/
enforcementenforcement -guidance-decontamination-filtering-facepiece-respirators-healthcare; and CDC, -guidance-decontamination-filtering-facepiece-respirators-healthcare; and CDC, ~~Im plem enting~~Implementing Filtering
Facepiece Respirator (FFR) Reuse, Including Reuse after ~~Decontam ination~~Decontamination, When There Are Known Shortages of N95
Respirators, October 19, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontamination-, October 19, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontamination-
reuse-respirators.html. reuse-respirators.html.
~~148~~150 OSHA, OSHA, Temporary Enforcement Guidance—Tight-Fitting Powered Air Purifying Respirators (PAPRs) Used During
the Coronavirus Disease 2019 (COVID-19) ~~Pandem i~~Pandemic, October 2, 2021, at https://www.osha.gov/memos/2020-10-02/c, October 2, 2021, at https://www.osha.gov/memos/2020-10-02/
temporary-enforcement-guidance-tight-fitting-powered-air-purifying-respirators. temporary-enforcement-guidance-tight-fitting-powered-air-purifying-respirators.
~~149~~ 151 29 U.S.C. 29 U.S.C. §§657(c) and 673(a). Congressional Research Service 27 OSHA: ETS and COVID-19 medical care beyond first aid.152 Employers must also report to OSHA, within eight hours, any workplace fatality and, within 24 hours, any injury or illness that results in in-patient hospitalization, amputation, or loss of an eye. Employers in certain industries determined by 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, illnesses, and deaths.153 Offices of physicians, dentists, other health practitioners and outpatient medical clinics are included in the industries that are exempt from the recordkeeping requirements.~~§§657(c) and 673(a).~~
~~150 OSHA’s reporting and recordkeeping regulations are at T itle 29, Part 1904, of the Code of Federal Regulations.~~
~~151 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.~~
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OSHA regulations require the employer to determine if an employee’s injury or OSHA regulations require the employer to determine if an employee’s injury or ~~il ness~~illness is related is related
to his or her work and thus subject to the recordkeeping requirements.to his or her work and thus subject to the recordkeeping requirements.~~152~~154 The regulations provide The regulations provide
a presumption that an injury or a presumption that an injury or ~~il ness~~illness that occurs in the workplace is work-related and recordable that occurs in the workplace is work-related and recordable
unless one of the exemptions provided in the regulations applies.unless one of the exemptions provided in the regulations applies.~~153~~155 One of the listed exemptions One of the listed exemptions
is “The is “The ~~il ness~~illness is the common cold or flu (Note: contagious diseases such as tuberculosis, is the common cold or flu (Note: contagious diseases such as tuberculosis,
~~brucel osis~~brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at , hepatitis A, or plague are considered work-related if the employee is infected at
work).”work).”~~154~~156
Because of the nature of COVID-19 transmission, which can occur outside of work as Because of the nature of COVID-19 transmission, which can occur outside of work as ~~wel~~ well as in as in
the workplace, it can be difficult to determine the exact source of any person’s COVID-19 the workplace, it can be difficult to determine the exact source of any person’s COVID-19
transmission. Absent any specific guidance, this may make it difficult for employers to determine transmission. Absent any specific guidance, this may make it difficult for employers to determine
if an employee’s COVID-19 is subject to the recordkeeping requirements. if an employee’s COVID-19 is subject to the recordkeeping requirements.
Initial OSHA Recordkeeping Guidance
On April On April 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be
treated under the recordkeeping requirements.treated under the recordkeeping requirements.~~155~~157 This guidance stated that COVID-19 cases were This guidance stated that COVID-19 cases were
recordable if they were work-related. recordable if they were work-related.
Under this guidance, employers in the following industry groups were to fully comply with the Under this guidance, employers in the following industry groups were to fully comply with the
recordkeeping regulations, including the requirement to determine if COVID-19 cases were recordkeeping regulations, including the requirement to determine if COVID-19 cases were
work-related: work-related:
 health care;  health care;
 emergency response, including firefighting, emergency medical services, and law  emergency response, including firefighting, emergency medical services, and law
enforcement; and enforcement; and
 correctional institutions.  correctional institutions.
For For al all other employers, OSHA required employers to determine if COVID-19 cases were work-other employers, OSHA required employers to determine if COVID-19 cases were work-
related and subject to the recordkeeping requirements only if both of the following two conditions related and subject to the recordkeeping requirements only if both of the following two conditions
~~were met:~~
~~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.~~

~~152 29 C.F.R. §1904.5.~~
~~153 29 C.F.R. §1905.5(a).~~
~~154 29 C.F.R. §1904.5(b)(2)(viii).~~
~~155 OSHA,~~ ~~Enforcement Guidance for Recording Cases of Coronavirus Disease~~ were met: 152 OSHA’s reporting and recordkeeping regulations are at Title 29, Part 1904, of the Code of Federal Regulations. 153 The list of exempted industries is at Title 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. 154 29 C.F.R. §1904.5. 155 29 C.F.R. §1905.5(a). 156 29 C.F.R. §1904.5(b)(2)(viii). 157 OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), April 10, 2020, , April 10, 2020,
https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19. https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
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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 well 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 ~~Updated OSHA Recordkeeping Guidance~~
OSHA issued new guidance, effective May 26, 2020, on recordkeeping of COVID-19 cases.OSHA issued new guidance, effective May 26, 2020, on recordkeeping of COVID-19 cases.~~156~~158
This new guidance rescinds the previous guidance issued by OSHA on AprilThis new guidance rescinds the previous guidance issued by OSHA on April 10, 2020. Under this 10, 2020. Under this
new guidance, new guidance, al all employers, regardless of type of industry or employment, are subject to the employers, regardless of type of industry or employment, are subject to the
recordkeeping and reporting regulations for work-related cases of COVID-19. To determine if an 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, employer has made a reasonable determination that a case of COVID-19 was work-related,
OSHA says it OSHA says it ~~wil~~ will consider the following factors: consider the following factors:
 the reasonableness of the employer’s investigation of the COVID-19 case and its  the reasonableness of the employer’s investigation of the COVID-19 case and its
transmission to the employee, transmission to the employee,
 the evidence that is available  the evidence that is available to the employer, and to the employer, and
 the evidence that COVID-19 was contracted at work.  the evidence that COVID-19 was contracted at work.
The guidance provides examples of evidence that can be used to demonstrate that a COVID-19 The guidance provides examples of evidence that can be used to demonstrate that a COVID-19
case was or was not work-related, such as if an employee had frequent close contact with case was or was not work-related, such as if an employee had frequent close contact with
members of the public in an area with ongoing community transmission of COVID-19.members of the public in an area with ongoing community transmission of COVID-19.
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 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 Frequently Asked Questions webpage on May 22, 2021, provides that the agency ~~wil~~ will not require not require
any employers to record or report any injuries or any employers to record or report any injuries or ~~il ness~~illness resulting from the COVID-19 vaccine resulting from the COVID-19 vaccine
even if vaccination is a condition of employment. This guidance is to remain in effect through even if vaccination is a condition of employment. This guidance is to remain in effect through
May 2022.May 2022.~~157~~159
Whistleblower Protections
Section 11(c) of the OSH Act prohibits any person from retaliating or discriminating against any Section 11(c) of the OSH Act prohibits any person from retaliating or discriminating against any
employee who exercises certain rights provided by the OSH Act.employee who exercises certain rights provided by the OSH Act.~~158~~160 Commonly referred to as the 158 OSHA, ~~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.159~~

~~156 OSHA,~~ Revised Enforcement Guidance for Recording Cases of Coronavirus Disease ~~201 9~~ 2019 (COVID-19), May 19, , May 19,
2020, https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2020, https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-
2019-covid-19. 2019-covid-19.
~~157~~ 159 OSHA, OSHA, COVID-19: Frequently Asked Questions, https://www.osha.gov/coronavirus/faqs#vaccine. , https://www.osha.gov/coronavirus/faqs#vaccine. ~~T his~~This guidance guidance
supersedessupersedes previous guidance,previous guidance, ~~issued~~ issued on April 21, 2021, that required employers to record and report injuries and on April 21, 2021, that required employers to record and report injuries and
illnessesillnesses from the COVID-19 vaccine if the employers requiredfrom the COVID-19 vaccine if the employers required the vaccine as a condition of employment. the vaccine as a condition of employment.
~~158~~160 29 U.S.C. 29 U.S.C. §660(c). OSHA§660(c). OSHA also enforces whistlebloweralso enforces whistleblower provisions in 22 other federal statutes. Information on provisions in 22 other federal statutes. Information on
statutes with whistleblowerstatutes with whistleblower provisions enforced by OSHAprovisions enforced by OSHA is is at OSHA,at OSHA, Whistleblower Statutes ~~Sum m ary~~Summary Chart, ,
October 17, 2009, https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-ChartOctober 17, 2009, https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart ~~-10.8-Final.pdf.~~
~~159 29 C.F.R. §1977.3. Public sector employees, except employees of the U.S. Postal Service , are not protected by the~~
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29

~~link to page 42~~ ~~OSHA: ETS and COVID-19~~
-10.8-Final.pdf. Congressional Research Service 29 OSHA: ETS and COVID-19 whistleblower protection provision, this provision protects any employee who takes any of the following actions:  files a complaint with OSHA related to a violation of the OSH Act;  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.161
Other rights afforded by the OSH Act that are covered by the whistleblower protection provision Other rights afforded by the OSH Act that are covered by the whistleblower protection provision
include the right to inform the employer about unsafe work conditions; the right to access include the right to inform the employer about unsafe work conditions; the right to access
material safety data sheets or other information required to be made availablematerial safety data sheets or other information required to be made available by the employer; by the employer;
and the right to report a work-related injury, and the right to report a work-related injury, ~~il ness~~illness, or death to OSHA., or death to OSHA.~~160~~162 In limited cases, the In limited cases, the
employee has the right to refuse to work if conditions reasonably present a risk of serious injury employee has the right to refuse to work if conditions reasonably present a risk of serious injury
or death and there is not sufficient time to eliminateor death and there is not sufficient time to eliminate the danger through other means.the danger through other means.~~161~~
163 In the 116th Congress, the COVID-19 Every Worker Protection Act of 2020 (H.R. 6559/S. 3677) In the 116th Congress, the COVID-19 Every Worker Protection Act of 2020 (H.R. 6559/S. 3677)
would have required OSHAwould have required OSHA to promulgate an ETS and required the ETS and permanent standard to promulgate an ETS and required the ETS and permanent standard
promulgated pursuant to the legislationpromulgated pursuant to the legislation to expand the protections for whistleblowers. The to expand the protections for whistleblowers. The
following additional activities taken by employees would have granted them protection from following additional activities taken by employees would have granted them protection from
retaliation and discrimination from employers and agents of employers: 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  reporting to the employer; a local, state, or federal agency; or the media or on a
social media platform the following: social media platform the following:
 a violation of the ETS or permanent standard promulgated pursuant to the  a violation of the ETS or permanent standard promulgated pursuant to the
legislation, legislation,
 a violation of the infectious disease control plan required by the ETS or  a violation of the infectious disease control plan required by the ETS or
permanent standard, or permanent standard, or
 a good-faith concern about an infectious disease hazard in the workplace;  a good-faith concern about an infectious disease hazard in the workplace;
 seeking assistance from the employer or a local, state, or federal agency with  seeking assistance from the employer or a local, state, or federal agency with
such a report; and such a report; and
 using  using ~~personal y~~personally supplied PPE with a higher level of protection than offered by supplied PPE with a higher level of protection than offered by
the employer. the employer.
State Occupational Safety and Health Standards
States have the authority to establish their own occupational safety and health plans and preempt States have the authority to establish their own occupational safety and health plans and preempt
standards established and enforced by OSHA.standards established and enforced by OSHA.~~162~~164 OSHA must approve state plans if they are “at OSHA must approve state plans if they are “at
least as effective” as OSHA’s standards and enforcement. If a state adopts a state plan, it must least as effective” as OSHA’s standards and enforcement. If a state adopts a state plan, it must
also cover state and local government entities, such as public schools, not covered by OSHA. also cover state and local government entities, such as public schools, not covered by OSHA.
State plans may incorporate OSHA standards by reference, or states may adopt their own State plans may incorporate OSHA standards by reference, or states may adopt their own
161 29 C.F.R. §1977.3. Public sector employees, except employees of the U.S. Postal Service, are not protected by the whistleblower provision but may be covered by whistleblower provisions in other federal and state statutes. 162 For additional information on other rights covered by the whistleblower protection provision, see OSHA, January 9, 2019, Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection Provision, pp. 5-7, https://www.osha.gov/sites/default/files/11cDeskAid.pdf. 163 29 C.F.R. §1977.12(b)(2). 164 29 U.S.C. §667. Congressional Research Service 30 link to page 42 OSHA: ETS and COVID-19 standards that are at least as effective as OSHA’s standards. If a state has a standard that is stricter standards that are at least as effective as OSHA’s standards. If a state has a standard that is stricter
than an OSHA standard, the state standard would apply. than an OSHA standard, the state standard would apply.
Two states, California and Michigan, have issued temporary standards under their state plans that Two states, California and Michigan, have issued temporary standards under their state plans that
directly address COVID-19 exposure, with Michigan’s temporary standards rescinded and directly address COVID-19 exposure, with Michigan’s temporary standards rescinded and
replaced by the OSHAreplaced by the OSHA COVID-19 ETS for health care employers. In addition, Oregon and COVID-19 ETS for health care employers. In addition, Oregon and
~~Virginia~~ Virginia have issued permanent COVID-19 standards, and California has had a permanent state have issued permanent COVID-19 standards, and California has had a permanent state
standard covering aerosol transmission of diseases standard covering aerosol transmission of diseases ~~since~~ since 2009. Table A-2 in the Appendix to this in the Appendix to this
~~report provides a summary of these state standards.~~

~~whistleblower provision but may be covered by whistleblower provisions in other federal and state statutes.~~
~~160 For additional information on other rights covered by the whistleblower protection provision, see OSHA, January 9,~~
~~2019,~~ ~~Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection~~
~~Provision, pp. 5-7, https://www.osha.gov/sites/default/files/11cDeskAid.pdf.~~
~~161 29 C.F.R. §1977.12(b)(2).~~
~~162 29 U.S.C. §667.~~
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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, The California Division of Occupational Safety and Health (Cal/OSHA), under its state plan,
promulgated its aerosol transmissible disease (ATD) standard in 2009.promulgated its aerosol transmissible disease (ATD) standard in 2009.~~163~~165 The ATD standard The ATD standard
covers most health care workers (including emergency medical services and police transport or covers most health care workers (including emergency medical services and police transport or
detention of infected persons) and laboratory workers, as detention of infected persons) and laboratory workers, as ~~wel~~ well as workers in correctional as workers in correctional
facilities, homeless shelters, and drug treatment programs. Under the ATD standard, SARS-CoV-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 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 isolation. This classification subjects the virus to stricter control standards than diseases requiring
only droplet precautions, such as seasonal influenza.only droplet precautions, such as seasonal influenza.~~164~~166 The key requirements of the ATD standard The key requirements of the ATD standard
include include
 written ATD exposure control plan and procedures;  written ATD exposure control plan and procedures;
 training of  training of al all employees on COVID-19 exposure, use of PPE, and procedures if employees on COVID-19 exposure, use of PPE, and procedures if
exposed to COVID-19; exposed to COVID-19;
 engineering and work practice controls to control COVID-19 exposure, including  engineering and work practice controls to control COVID-19 exposure, including
the use of airborne isolation rooms; the use of airborne isolation rooms;
 provision of medical services to exposed employees, including post-exposure  provision of medical services to exposed employees, including post-exposure
evaluation of employees and treatment and vaccines, if available; evaluation of employees and treatment and vaccines, if available;
 the removal, without penalty to the employees, of exposed employees,  the removal, without penalty to the employees, of exposed employees,
 specific requirements for laboratory workers, and  specific requirements for laboratory workers, and
 PPE requirements.  PPE requirements.
Cal/OSHA Aerosol Transmissible Disease PPE Requirements
The Cal/OSHA ATD standard requires that employers provide employees PPE, including gloves, The Cal/OSHA ATD standard requires that employers provide employees PPE, including gloves,
gowns or gowns or ~~coveral s~~coveralls, eye protection, and respirators certified by NIOSH at least at the N95 level , eye protection, and respirators certified by NIOSH at least at the N95 level
whenever workers whenever workers
 enter or work in an airborne isolation room or area with a case or suspected case;  enter or work in an airborne isolation room or area with a case or suspected case;
 are present during procedures or services on a case or suspected case;  are present during procedures or services on a case or suspected case;
 repair, replace, or maintain air systems or equipment that may contain pathogens;  repair, replace, or maintain air systems or equipment that may contain pathogens;
~~ decontaminate an area that is or was occupied by a case or suspected case;~~
~~ 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.~~

~~163~~ 165 Aerosol Transmissible Diseases, Cal. Code, Cal. Code Regs.Regs. tit. 8, §5199, available at https://www.dir.ca.gov/title8/5199.html. tit. 8, §5199, available at https://www.dir.ca.gov/title8/5199.html.
~~T he~~The California state plan covers all state and local government agencies and all private sector workers in the state, with 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 basesthe exception of maritime workers; workers on military bases and in national parks, monuments, memorials, and and in national parks, monuments, memorials, and
recreation areas; workers on federally recognized recreation areas; workers on federally recognized ~~Nativ e~~Native American reservations and trust lands; American reservations and trust lands; and U.S. Postal Service and U.S. Postal Service
contractors. contractors.
~~164~~166 Cal. Code Cal. Code Regs.Regs. tit. 8, §5199 Appendix A. tit. 8, §5199 Appendix A.
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 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 PAPR with a high-efficiency particulate air (HEPA) filter must be used whenever a In addition, a PAPR with a high-efficiency particulate air (HEPA) filter must be used whenever a
worker performs a worker performs a high-hazard procedure on a known or suspected COVID-19 case. on a known or suspected COVID-19 case.~~165~~167 High- High-
hazard procedures are those in which “the potential for being exposed to aerosol transmissible 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”—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.they include intubation, airway suction, and caring for patients on positive pressure ventilation.~~166~~168
Emergency medical services (EMS) workers may use N100, R100, or P100 respirators in place of Emergency medical services (EMS) workers may use N100, R100, or P100 respirators in place of
PAPRs.PAPRs.
Cal/OSHA COVID-19 ETS
On November 19, 2020, the California Occupational Safety and Health Standards Board On November 19, 2020, the California Occupational Safety and Health Standards Board
approved an ETS to approved an ETS to ~~specifical y~~specifically address COVID-19 exposure in the workplace. address COVID-19 exposure in the workplace.~~167~~169 This ETS This ETS
became effective on November 30, 2020. The Cal/OSHA ETS applies to became effective on November 30, 2020. The Cal/OSHA ETS applies to al all covered employers in covered employers in
the state, including state and local government entities, and provides for broader protections than the state, including state and local government entities, and provides for broader protections than
the Cal/OSHAthe Cal/OSHA ATD standard. The Cal/OSHA ETS includes specific provisions that apply to ATD standard. The Cal/OSHA ETS includes specific provisions that apply to
employer-provided housing and transportation. On June 17, 2021, the California Occupational employer-provided housing and transportation. On June 17, 2021, the California Occupational
Safety and Health Standards Board voted to amend the Cal/OSHASafety and Health Standards Board voted to amend the Cal/OSHA ETS to permit fully vaccinated ETS to permit fully vaccinated
employees to work indoors without facemasks or face coverings and employees to work indoors without facemasks or face coverings and al all employees, regardless of employees, regardless of
vaccination status, to work outdoors without facemasks or face coverings. The amended vaccination status, to work outdoors without facemasks or face coverings. The amended
Cal/OSHACal/OSHA ETS expires on January 14, 2022. ETS expires on January 14, 2022.
Michigan: MIOSHA COVID-19 Emergency Rules
On October 14, 2020, the director of the Michigan Department of Labor and Economic On October 14, 2020, the director of the Michigan Department of Labor and Economic
Opportunity, which operates Michigan’s state occupational safety and health plan (MIOSHA), Opportunity, which operates Michigan’s state occupational safety and health plan (MIOSHA),
promulgated emergency rules, with a duration of six months, to address workplace exposure to promulgated emergency rules, with a duration of six months, to address workplace exposure to
COVID-19. On AprilCOVID-19. On April 10, 2021, the MIOSHA emergency rules were extended for an additional 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 six months through October 14, 2021. These rules were amended, effective May 24, 2021, based
on updated CDC guidance, and the amended rules were to remain in effect through October 14, on updated CDC guidance, and the amended rules were to remain in effect through October 14,
2021.2021.~~168~~170 On June 22, 2021, the Michigan Department of Labor and Economic Opportunity On June 22, 2021, the Michigan Department of Labor and Economic Opportunity
rescinded the MIOSHA COVID-19 emergency rules and replaced them with the OSHA COVID-rescinded the MIOSHA COVID-19 emergency rules and replaced them with the OSHA COVID-
19 ETS health care employers. The OSHA ETS 19 ETS health care employers. The OSHA ETS ~~wil~~ will remain in force in Michigan through remain in force in Michigan through
~~December 22, 2021. The Michigan emergency rules apply to al employers covered by the state~~
~~plan.~~

~~165 A PAPR uses~~ 167 A PAPR uses a mechanical device to drawa mechanical device to draw in room air and filter it before expelling that air over the user’s face. In in room air and filter it before expelling that air over the user’s face. In
general, PAPRs do not require a tight seal to the user’s face and do not need to be fit tested.general, PAPRs do not require a tight seal to the user’s face and do not need to be fit tested.
~~166~~ 168 Cal. Code Cal. Code Regs.Regs. tit. 8, §5199(b). tit. 8, §5199(b).
~~167~~169 COVID-19 Prevention, Cal. Code, Cal. Code Regs.Regs. tit. 8, §§3205-3205.4, available at https://www.dir.ca.gov/dosh/coronavirus/tit. 8, §§3205-3205.4, available at https://www.dir.ca.gov/dosh/coronavirus/
~~ET S~~ETS.html. .html.
~~168~~170 Emergency Rules: Coronavirus 2019 (COVID-19), available, available at https://www.michigan.gov//documents/leo/at https://www.michigan.gov//documents/leo/
Final_MIOSHA_Rules_705164_7.pdf. Final_MIOSHA_Rules_705164_7.pdf. ~~T he~~The Michigan state plan covers all state and local government agencies and all Michigan state plan covers all state and local government agencies and all
private sector workers in the state, with the exception of maritime workers, U.S. Postal Service private sector workers in the state, with the exception of maritime workers, U.S. Postal Service ~~con tractors~~contractors, workers at , workers at
businessesbusinesses ~~owned~~ owned or operated by tribal membersor operated by tribal members at Indian reservations, and aircraft cabin crewat Indian reservations, and aircraft cabin crew members.members.
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December 22, 2021. The Michigan emergency rules apply to all 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 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 operates Oregon’s state plan (Oregon OSHA), adopted temporary administrative rules to
~~specifical y~~specifically address COVID-19 exposures in the workplace. These rules were set to expire on address COVID-19 exposures in the workplace. These rules were set to expire on
May 4, 2021. On May 4, 2021, permanent administrative rules became effective.May 4, 2021. On May 4, 2021, permanent administrative rules became effective.~~169~~171 These These
permanent rules will remain in effect until repealed or revised by Oregon OSHA. Since the permanent rules will remain in effect until repealed or revised by Oregon OSHA. Since the
promulgation of the permanent administrative rules, Oregon has adopted three temporary promulgation of the permanent administrative rules, Oregon has adopted three temporary
amendments to the rules, with the most recent amendment issued on September 14, 2021, to bring amendments to the rules, with the most recent amendment issued on September 14, 2021, to bring
Oregon into compliance with the provisions of the OSHA COVID-19 ETS for health care Oregon into compliance with the provisions of the OSHA COVID-19 ETS for health care
employers. While the administrative rules are permanent, the amendments expire on December employers. While the administrative rules are permanent, the amendments expire on December
26, 2021. 26, 2021.
Virginia: VOSH COVID-19 Permanent Standard
On July 15, 2020, the VirginiaOn July 15, 2020, the Virginia Safety and Health Codes Board adopted an ETS to Safety and Health Codes Board adopted an ETS to ~~specifical y~~specifically
protect employees from exposure to SARS-CoV-2, the virus that causes COVID-19.protect employees from exposure to SARS-CoV-2, the virus that causes COVID-19.~~170~~172 On On
January 12, 2021, the Virginia Safety and Health Codes Board voted to promulgate a permanent January 12, 2021, the Virginia Safety and Health Codes Board voted to promulgate a permanent
COVID-19 standard that supersedes the ETS.COVID-19 standard that supersedes the ETS.~~171~~173
This ETS, promulgated under Virginia’s state occupational safety and health plan (VOSH), was This ETS, promulgated under Virginia’s state occupational safety and health plan (VOSH), was
the first state standard to the first state standard to ~~specifical y~~specifically address COVID-19 in the workplace. address COVID-19 in the workplace.~~172~~174 As an ETS, the As an ETS, the
VOSH standard was to expire within six months of its effective date, upon expiration of 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 governor’s state of emergency, when superseded by a permanent standard, or when repealed by
the Virginiathe Virginia Safety and Health Codes Board, whichever came first. The VOSH permanent Safety and Health Codes Board, whichever came first. The VOSH permanent
standard applies to standard applies to al all state and local government agencies and state and local government agencies and al all covered private sector covered private sector
employees in the state and does not contain additional requirements for any specific industries. 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, 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 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.173 While the standard is~~
~~permanent, a provision in the standard requires that within 14 days of expiration of the governor’s~~

~~169~~ 171 Addressing COVID-19 Workplace Risks, Or. Admin. R. 437-001-0744, available at https://osha.oregon.gov/Or. Admin. R. 437-001-0744, available at https://osha.oregon.gov/
OSHARules/div1/437-001-0744.pdf. OSHARules/div1/437-001-0744.pdf. ~~T he~~The Oregon state plan covers all state and local government agencies and all 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 private sector workers in the state, with the exception of maritime workers, private sector establishments within the
boundariesboundaries of Indian reservations and federal military reservations, employment at Crater Lake National Park and the of Indian reservations and federal military reservations, employment at Crater Lake National Park and the
U.S.U.S. Department of Energy Albany Research Center, U.S.Department of Energy Albany Research Center, U.S. Postal Service contractors, and aircraft cabin crew members Postal Service contractors, and aircraft cabin crew members
duringduring flight operations. flight operations.
~~170~~172 Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16 Va., 16 Va. Admin. Code §25-220, available Admin. Code §25-220, available
at https://www.doli.virginia.gov/wp-content/uploads/2020/07/RIS-filed-at https://www.doli.virginia.gov/wp-content/uploads/2020/07/RIS-filed-~~RT D-Final-ET S~~RTD-Final-ETS-7.24.2020.pdf. -7.24.2020.pdf. ~~T his ET S~~This ETS was was
effective upon publication in a Richmond, VA,effective upon publication in a Richmond, VA, newspaper duringnewspaper during the week of Julythe week of July 27, 2020.27, 2020.
~~171~~ 173 Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code, 16 Va. Admin. Code §25-220, §25-220,
available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-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. ~~T his~~This permanent standard is effective on January 27, 2021. permanent standard is effective on January 27, 2021.
~~172 T he~~174 The Virginia state plan covers all Virginia state plan covers all ~~st ate~~state and local government agencies and all private sector workers in the 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 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 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 crewSoutheastern Power Administration Kerr-Philpott System, and aircraft cabin crew ~~members.~~
~~173 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,~~
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~~OSHA: ETS and COVID-19~~

members. Congressional Research Service 33 OSHA: ETS and COVID-19 prevention requirements even after the COVID-19 pandemic has ended.175 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 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 emergency, the Virginia Safety and Health Codes Board must meet to determine if there is a
~~continued need for the standard.~~
continued need for the standard. 175 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 Congressional Research Service

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OSHA: ETS and COVID-19

Appendix.
Table A-1. OSHA Emergency Temporary Standards (ETS)
Federal Register
Result of Judicial
Judicial Review
Year
Subject of ETS
Citation of ETS
Review
Case Citation
1971 1971
Asbestos Asbestos
36 36 Federal Register
Not Not ~~chal enged~~challenged
— —
23207 (December 7, 23207 (December 7,
1971) 1971)
1973 1973
Organophosphorous Organophosphorous
38 38 Federal Register
Vacated Vacated
Florida Peach Growers
pesticides pesticides
10715 (May 1, 1973); 10715 (May 1, 1973);
Ass'n v. United States
amended by 38 amended by 38 Federal
Department of Labor,
Register 17214 (June 17214 (June
489 F.2d 120 (5th Cir. 489 F.2d 120 (5th Cir.
29, 1973) 29, 1973)
1974) 1974)
1973 1973
Fourteen carcinogens Fourteen carcinogens
38 38 Federal Register
Twelve upheld, two Twelve upheld, two
Dry Color Mfrs. Ass'n v.
10929 (May 3, 1973) 10929 (May 3, 1973)
vacated vacated
Department of Labor,
486 F.2d 98 (3d Cir. 486 F.2d 98 (3d Cir.
1973) 1973)
1974 1974
Vinyl chloride Vinyl chloride
39 39 Federal Register
Not Not ~~chal enged~~challenged
— —
12342 (April 5, 1974) 12342 (April 5, 1974)
1976 1976
Diving operations Diving operations
41 41 Federal Register
Stayed Stayed
Taylor Diving & Salvage
24271 (June 15, 1976) 24271 (June 15, 1976)
Co. v. Department of
Labor, 537 F.2d 819 , 537 F.2d 819
(5th Cir. 1976) (5th Cir. 1976)
1977 1977
Benzene Benzene
42 42 Federal Register
Stayed Stayed
Industrial Union Dep't v.
22515 (May 3, 1977) 22515 (May 3, 1977)
Bingham, 570 F.2d 965 , 570 F.2d 965
(D.C. Cir.(D.C. Cir. 1977) 1977)
1977 1977
1,2 Dibromo-3- 1,2 Dibromo-3-
42 42 Federal Register
Not Not ~~chal enged~~challenged
— —
chloropropane (DBCP) 45535 (September 9, chloropropane (DBCP) 45535 (September 9,
1977) 1977)
1978 1978
Acrylonitrile Acrylonitrile (vinyl (vinyl
43 43 Federal Register
Stay denied Stay denied
Vistron v. OSHA, 6 , 6
cyanide) cyanide)
2585 (January 17, 2585 (January 17,
OSHC 1483 (6th Cir. OSHC 1483 (6th Cir.
1978) 1978)
1978) 1978)
1983 1983
Asbestos Asbestos
48 48 Federal Register
Stayed Stayed
Asbestos Info. Ass'n v.
51086 (November 4, 51086 (November 4,
OSHA, 727 F.2d 415 , 727 F.2d 415
1983) 1983)
(5th Cir. 1984) (5th Cir. 1984)
2021 2021
COVID-19 for health COVID-19 for health
86 86 Federal Register
Petitions for review Petitions for review
United Food and
care employers care employers
32376 (June 21, 2021) 32376 (June 21, 2021)
filed on June 24, 2021 filed on June 24, 2021
Commercial Workers
and American Federation
of Labor and Congress of
Industrial Organizations
v. OSHA, et al.,, Docket Docket
No. 21-1143 (D.C. No. 21-1143 (D.C.
Cir. June 24, 2021) Cir. June 24, 2021)
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OSHA: ETS and COVID-19

Federal Register
Result of Judicial
Judicial Review
Year
Subject of ETS
Citation of ETS
Review
Case Citation
2021 2021
COVID-19 vaccination COVID-19 vaccination
86 86 Federal Register
Stay ordered by U.S. Stay ordered by U.S.
Numerous petitions Numerous petitions
and testing and testing
61402 (November 5, 61402 (November 5,
Court of Appeals for Court of Appeals for
for judicial review, for judicial review,
2021) 2021)
the Fifth Circuit on the Fifth Circuit on
including including BST Holdings
November November 6, 2021, 6, 2021,
v. OSHA, Docket, Docket No. No.
and reaffirmed and reaffirmed on on
21-60845 (5th Cir. 21-60845 (5th Cir.
November November 12, 2021. 12, 2021.
Nov. 5, 2021), Nov. 5, 2021),
consolidated to U. S. consolidated to U. S.
Court of Appeals for Court of Appeals for
the Sixth Circuit.a the Sixth Circuit.a
Source: CRS with data fromCRS with data from Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHAMark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: Rulemaking:
Reproductive Hazards as an Example,”Reproductive Hazards as an Example,” Boston ~~Col ege~~College Environmental Affairs Law Review, vol. 12, no. 4 (August , vol. 12, no. 4 (August
1985), p. 673. 1985), p. 673.
a. For additional information on judicial reviewa. For additional information on judicial review of the OSHAof the OSHA COVID-19 vaccination and testing ETS, seeCOVID-19 vaccination and testing ETS, see CRS CRS
Legal Sidebar LSB10658, Legal Sidebar LSB10658, Fifth Circuit Stays OSHA Vaccination and Testing Standard. .

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link to page 42 link to page 42 link to page 42 link to page 42 link to page 42 link to page 42 link to page 42 link to page 42 link to page 42 link to page 42 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 Disease (ATD(ATD)a
corrections corrections
facilities,facilities, homeless homeless
shelters,shelters, and drug and drug
treatment centers treatment centers
COVD-19 COVD-19
Al All employers employers
November November 30, 2020 January 14, 2022 30, 2020 January 14, 2022
Preventio Preventionb
June 17, 2021 June 17, 2021
(amended) (amended)
Michigan (MIOSHA) Michigan (MIOSHA)
Emergency Rules: Emergency Rules:
Al All employers,employers, with with
October 14, 2020, October 14, 2020,
Rescinded on June Rescinded on June
Coronavirus 2019 Coronavirus 2019
additional rules additional rules for for
April April 10, 2021 10, 2021
22, 2021, and 22, 2021, and
(COVID- (COVID-19)c
specific industries specific industries
(extended) (extended)
replaced with replaced with
May 24, 2021 May 24, 2021
OSHA COVID-19 OSHA COVID-19
(amended) (amended)
ETS for health care ETS for health care
employers,employers, which which
expires in Michigan expires in Michigan
on Decemberon December 22, 22,
2021 2021
Oregon (Oregon Oregon (Oregon
Addressing COVID- Addressing COVID-
Al All employers,employers, with with
November November 6, 2020 6, 2020
Permanentf Permanentf
OSHA) OSHA)
19 Workplace 19 Workplace
additional rules additional rules for for
(ETS), reissued (ETS), reissued
~~Risk~~sdRisksd
specific industries specific industries
December December 11, 2020 11, 2020
May 4, 2021 May 4, 2021
(permanent (permanent
standard) standard)
Virginia (VOSH) Virginia (VOSH)
Infectious Disease Infectious Disease
Al All employers 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: CongressionalCongressional Research ServiceResearch Service (CRS). (CRS).
a. Availablea. Available at https://www.dir.ca.gov/title8/5199.html. at https://www.dir.ca.gov/title8/5199.html.
b. Availableb. Available at https://www.dir.ca.gov/dosh/coronavirus/ETS.html.at https://www.dir.ca.gov/dosh/coronavirus/ETS.html.
c. Availablec. Available at https://www.michigan.gov//documents/leo/Final_MIOSHA_Rules_705164_7.pdf. at https://www.michigan.gov//documents/leo/Final_MIOSHA_Rules_705164_7.pdf.
d. Availabled. Available at https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf. at https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf.
e. Availablee. Available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-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 Oregon OSHA is required to consult with state agencies and other stakeholders to determineto determine when the when the
permanent rulespermanent rules can be amended or repealed,can be amended or repealed, with the first of these consultations to occur no later than with the first of these consultations to occur no later than
July 2021. After the first consultations, ongoing consultations are requiredJuly 2021. After the first consultations, ongoing consultations are required every two months until the rules every two months until the rules
are repealed. are repealed.
g. Within 14 days of expiration of the governor’s g. Within 14 days of expiration of the governor’s COVID-19 state of emergencyCOVID-19 state of emergency and the commissionerand the commissioner of of
health’s COVID-19 declaration of public emergency, health’s COVID-19 declaration of public emergency, the Virginia Safety and Health Codes Board must meet the Virginia Safety and Health Codes Board must meet
to determineto determine if there is a continued need for the standard. 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
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Congressional Research Service Congressional Research Service
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